Court of Appeal (Qld)|2004-06-18|Before: de Jersey CJ, Williams JA and Philippides JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
de Jersey CJ, Williams JA and Philippides JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
UNREASONABLE OR
INSUPPORTABLE VERDICT – EFFECT OF OPINIONOF TRIAL JUDGECRIMINAL
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –UNREASONABLE ORINSUPPORTABLE VERDICT – EFFECT OF OPINIONOF TRIAL JUDGECRIMINALLAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL ANDNEW TRIAL – PARTICULAR GROUNDS –MISDIRECTION AND NON-DIRECTION– GENERAL MATTERS – CONSIDERATION OF SUMMING-UP AS AWHOLECRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTERCONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE–APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHENGRANTED – PARTICULAR OFFENCES –OFFENCES AGAINST THE PERSON –SEXUAL OFFENCESCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTERCONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE–APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHENREFUSED – PARTICULAR OFFENCES –OFFENCES AGAINST THE PERSON –
SEXUAL OFFENCES – where the appellant Keevers was convicted of unlawful
and indecent assault
and imprisoned for 12 months, suspended after 21 days for
18 months – where the appellant Filewood was convicted of rape and
imprisoned for two and half years, suspended after nine months for three years
– where each appellant seeks leave to appeal
against sentence and appeals
against conviction – whether the trial Judge misdirected the jury on the
application of s 24 of
the Criminal Code – whether the summing-up
of the trial Judge was unduly lengthy, confusing, and contained unnecessary and
inappropriate comments
which were likely to distract the jury from a proper
consideration of the evidence – whether there was an unreasonable, unsafe
and unsatisfactory verdict
Judgment (75 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] de JERSEY CJ: The appellant Keevers was on 1 April 2004 convicted at trial in the District Court of unlawfully and indecently assaulting the complainant on 22 September 2002. He was imprisoned for 12 months, suspended after 21 days for 18 months. The appellant Filewood was convicted of rape committed on the same occasion, and imprisoned for two and a half years, suspended after nine months for three years. Each appellant seeks leave to appeal against sentence, as well as appealing against conviction.
[3]
[2] At the time of the relevant events, Keevers was aged 23 and Filewood 24. Keevers and Filewood played soccer for a suburban club, as did the complainant's friend, to whom I will refer as Jacob. Keevers and Jacob lived in a two bedroom unit (with others). The complainant and Jacob had a sexual relationship as at 21 September 2002. On that evening, all of those persons attended a club presentation dinner. The complainant accompanied Jacob. Prior to leaving the unit, they had sexual intercourse together. After the presentation dinner, the group went to the Regatta Hotel, leaving at about 3am on 22 September. The complainant described her condition as "certainly pretty drunk". Jacob had consumed alcohol to the point of being sick. At the hotel, the complainant was subjected to inappropriate comment by male persons, but not including the appellants. Back at the unit, as its then sole occupants, the complainant and Jacob participated in vaginal, and more substantially, anal intercourse. The latter was facilitated by a lubricant. The complainant experienced no discomfort. Then the complainant, who was wearing a negligee but no underpants, fell asleep on the bed, as did Jacob by her side. Having returned to the unit, Keevers and Filewood entered the bedroom and what then transpired constituted the offences.
[4]
[3] The complainant gave evidence that rousing from her sleep, she became aware of wetness or kissing on her neck, and of some breathing in or near her ear. She also spoke of what may be described as somewhat rough fondling of her breast. Perhaps shortly afterwards, but still almost simultaneously, she felt that she was "getting punched in the vagina", with a feeling of stinging and aching. She immediately woke up and found Keevers seated at her head, or towards her upper body, and Filewood at the bottom of the bed, as she said, removing his right hand from her vaginal area. She said: "What the hell is happening? What is going on?" Both appellants said to the effect: "Calm down ... [w]e didn't actually have sex with you." The complainant hastily donned clothing over her negligee, and fled the unit.
[5]
[4] The complainant went to a nearby service station. After making a telephone call to her mother, she called 000, and the tape recording of that conversation was admitted as an exhibit. It clearly constituted fresh complaint, and evidenced the complainant's distressed condition.
[6]
[5] Police officers interviewed Keevers on 7 October 2002. He said that after he and Filewood arrived at the unit, they went to the bedroom occupied by the complainant and Jacob. He asked would they like a drink, and they said no. Then he and Filewood lay on the bed, and he Keevers asked the complainant for a goodnight kiss. She agreed, and started kissing him enthusiastically. (The complainant denied all of this.) Keevers asked was she in effect consenting, and she said yes, whereupon Jacob asked her: "Are you right?", to which she again replied yes. While admitting that he kissed the complainant, Keevers claimed, contrary to the complainant's version, that it was on the lips with the complainant responding. Keevers also admitted, at first tentatively but later somewhat more firmly, that he may have touched her on the breast. He went on to say that the complainant made no complaint until after he had finished kissing her, and that when she did complain, he was surprised.
[7]
[6] The police interviewed Filewood on 8 October 2002. He said that when he and Keevers entered the bedroom, Jacob was asleep, but woke up about half way through the incident. Filewood said that Keevers asked the complainant for a kiss, whereupon she started kissing Keevers, followed by her thrusting her pelvis and reaching out for Filewood's hand, which she put under the sheets near to her vagina. Filewood said he placed his fingers inside her vagina, which remained in that position for a couple of minutes. Then all of a sudden the complainant's motions ceased, and she said: "What's going on?", became upset and left.
[8]
[7] Jacob gave evidence of being woken by what he described as heavy breathing and a "sexual noise" from the complainant. He saw that Keevers and the complainant were kissing, and then noticed Filewood come up from the end of the bed. He (Jacob) thought that the complainant was awake. He said that after the complainant started screaming, Keevers said: "Nothing has happened, we just kissed."
[9]
[8] Dr Leadbeater, who examined the complainant, found the following injuries: three tears at the back of the vulva, a bruise and a graze on a hymeneal remnant, and a tear on the perineum. Her evidence was that "quite significant force" would have been necessary to produce the tears at the back of the vulva; she could not imagine the injuries occurring without pain; tenderness along the posterior wall of the vagina was "unusual", given the capacity of the vagina to expand; and she would not expect such injuries in a case of consenting sex.
[10]
[9] The grounds of appeal against conviction are in each case as follows:
[11]
"(a) The learned trial Judge misdirected the jury on the application of s.24 of the Criminal Code.
(b) The summing-up of the trial Judge was unduly lengthy, confusing, and contained unnecessary and inappropriate comments which were likely to distract the jury from a proper consideration of the evidence.
(c) The verdicts of the jury are unreasonable, cannot be supported by the evidence, and are thus unsafe and unsatisfactory."
[12]
First ground: exclusion of honest and reasonable but mistaken belief as to consent
[13]
[10] In view of the admissions by the appellants during their interviews with the police, and the conduct of the trial, the only substantial issues were whether the Crown established beyond reasonable doubt that the complainant did not consent, or alternatively, excluded beyond reasonable doubt that the appellant in each case honestly and reasonably but mistakenly believed she was consenting.
[14]
[11] The complainant gave evidence that she did not consent, and that at relevant times she was asleep. Her immediate challenge to the appellants upon waking, her fleeing the unit, and forthwith complaining to the police, together with her distressed condition and potentially the injuries, supported the credibility of that evidence. The learned Judge urged the jury to scrutinize the complainant's evidence, and directed that they must be satisfied beyond reasonable doubt of the truth and accuracy of her evidence before they could convict.
[15]
[12] The arguable application of s 24 of the Criminal Code arose from statements made by Filewood in his interview by the police, and summarized above, to the effect that there was consensual kissing between the complainant and Keevers, with the complainant moving Filewood's hand beneath the sheets into the vicinity of her vagina. (I do not consider the defence was arguably raised by the other matters listed by Counsel for Filewood, but it is unnecessary to deal further with that because the defence was sufficiently raised by the Filewood interview.) As to Keevers, there were his claims, in his interview, of consensual kissing, with enthusiasm on the part of the complainant, and oral expressions of consent, at a time when Filewood was lying on the bed across Jacob's and the complainant's legs.
[16]
[13] It is necessary to set out the directions given by the learned Judge in relation to s 24, or most of them. They are as follows:
[17]
"Did she consent in fact or ... did she behave and react in such a way that the gentleman reasonably believed that she was consenting although, unfortunately, she was not.
[18]
... [t]he onus of proof that the offence of rape ... was committed being on the Crown ... [i]t is for the Crown to prove that she did not consent."
[19]
"... relevant to the question of unlawfulness ... [i]n addition to the issue of consent ... is ... the honest and reasonable and mistaken belief that, in fact, [the complainant] was consenting to ... the kiss and the fondling or kneading of the breast."
[20]
"A person who does an act under an honest and mistaken ... and reasonable ... belief, in the existence of a state of things - in other words, in this case, in the existence of a consent - is not criminally responsible ...
[21]
if you believe that a person is consenting to your doing something to her, then if you're mistaken about it and it's reasonable for you to be mistaken, you are not guilty ...
[22]
... [t]his section is concerned with not a case of actual consent, but a case where [the complainant] may have conducted herself in such a way as to lead Mr Keevers to conclude, and therefore believe, but wrongly, that she had, in fact, consented to being kissed and fondled ...
[23]
... if Mr Keevers did believe that she'd consented, and perhaps someone else in the same position or some onlooker would also say, "Oh, yes, that looks like consent to me, that sounds like consent to me," or, you know, "That's the go ahead," then you can say that that's a reasonable belief. It's an objective test ... the holding of a belief requires an examination of whether or not the person who's accused of the offence actually did have a belief in consent.
[24]
But the question of whether what he believed was a reasonable belief doesn't depend on his view, it depends upon the objective view of members of the jury ...
[25]
... you may find that it was an actual consent, but if you are looking at this other aspect and it was a reasonable belief to hold, then it seems to me that you'll also find that it was on the evidence a mistaken belief. And the law says that if that applies the person is not criminally responsible for the offence charged against him unless there's some other provision of the law that applies and my direction is there is no such other provision here.
[26]
I have'nt discussed - and I must now - the application of this same provision to the offence of rape alleged against Mr Filewood. If [the complainant] did anything or said anything which created in Mr Filewood an honest belief - albeit a mistaken belief - but a reasonable belief that [the complainant] was consenting, agreeing to Mr Filewood's finger or fingers entering her vulva and passing into the vagina. If he held that belief and it were mistaken then nonetheless the law says that he is not criminally responsible for the act to any greater extent that if the real state of things had been as he believed ...
[27]
... [s]o again, in Mr Filewood's case, the question will come down to this - did [the complainant] knowing - I'll use that word to cover the notion of freely and voluntarily and in knowledge of what was about to happen - conduct herself so as to indicate consent. Or did she act in such a way as to create in Mr Filewood's mind a mistaken belief but nonetheless a reasonable belief that she was consenting to what was about to happen.
[28]
Remember it's not for either of Mr Filewood or Mr Keevers to prove these matters. It's for the Crown that has the onus of proof to prove that there was either no consent or no honest belief - albeit a reasonable and mistaken one - or no reasonable belief even if one were held. Because the reasonableness sort of qualifies what belief it is that has to exist. You don't get off if you arrive at - shall we say - unusual and unreasonable conclusions. They have to be conclusions that - broadly speaking - others can reach as well - to be reasonable.
[29]
No special measure of or definition of what's reasonable belief or what's unreasonable. It's a question of fact. Again, it's a matter for you. Draw on your experience, common sense and in effect say, "How would I react in the same situation, how do I think others would react in the same situation." And if you could say, "Well, I could be mislead [sic]" and come to the wrong conclusion, it may well be that you would consider then that it was a reasonable belief. In the end, the onus is on the Crown to prove that each of the two accused is guilty of the respective offences alleged."
[30]
"You have to be satisfied, beyond reasonable doubt, that [the complainant] was digitally penetrated without consent. That there was an unlawful indecent assault, again without consent, by Mr Keevers. In the case of each of them you have to look - if you are satisfied that there was apparently an offence, of course, you have to go on then and consider whether what each of the accused did was because of this reasonable but mistaken belief that I've told you about, and only if that belief exists and is reasonable, and that's your view, then you still have to find a particular accused or both of the accused not guilty."
[31]
"The second half of the question requires you to consider whether you are satisfied that the insertion was at a time when Mr Filewood didn't hold a reasonable belief that [the complainant] was consenting to what he did. To return a verdict of guilty against Mr Filewood, that's a convenient summary of the two approaches that you have to take. One, insertion without consent or, two, insertion without a reasonable belief, a mistaken belief that she was consenting."
[32]
"A word that I didn't use, although it may have been used by counsel at various times, is that the Crown must also negative the existence of the honest and reasonable and mistaken belief. That's really another way of saying, as I did when I put the questions to you at the commencement of this morning, the Crown must prove that neither man held a reasonable belief that [the complainant] was consenting to what happened on the bed that early morning.
[33]
Remember always who has the onus. There's none on either of the accused. The Crown has got to satisfy you, leave you without any reasonable doubt about guilt."
[34]
[20] Counsel for the appellant Keevers, Mr Hunter, particularly challenged His Honour's statement at p 168 (see para [16] above) that "[y]ou don't get off if you arrive at ... unusual and unreasonable conclusions", submitting "that the notion that an accused ... in respect of whom the prosecution fails to rebut a defence 'gets off' is fundamentally inconsistent with the onus of proof. 'Getting off' implies a guilty person fortuitously escaping or evading the consequences of something that is otherwise proved." Mr Walker SC for the appellant Filewood supported this submission. While it would probably have been better were the expression "get off" not used, the direction was not incorrect. In using the term "get off", the Judge was pointing out in colloquial terms that an accused who holds the mistaken belief does not escape criminal responsibility if the belief should be unreasonable. In any event, the Judge had just instructed the jury that neither appellant bore any onus to establish the defence, emphasizing the obligation to exclude it rested on the Crown.
[35]
[21] There was general criticism of His Honour's explaining, a number of times, the elements of s 24, without at the same time emphasizing that it fell to the Crown to exclude them. The Judge was obliged to explain those elements, of course, and I consider that overall he did sufficiently cover the onus of excluding their applicability.
[36]
[22] Counsel submitted that the passage at p 179 (para [17] above), which was said late in the day, amounted to a misdirection as to the onus of proof. It was certainly unhappily expressed. One may infer what the Judge was trying to express, but he has not done so helpfully, and in particular, he should not have described a staged process as he did. But a request for further direction led to His Honour's giving a plainly orthodox direction the following morning (para [18] above); and then again towards the end of the summing up, he gave another precisely correct direction, in which he referred to the need for the Crown to "negative" the existence of the requisite belief (para [19] above).
[37]
[23] Mr Walker submitted those correct directions should have followed an acknowledgement by the Judge of the inaccuracy of what he said the day before. I have criticized the passage at p 179. But I do not consider that inadequacy was fatal, or to be repaired only with an express acknowledgement of that inadequacy.
[38]
[24] I accept the submission made by Mr Meredith, Counsel for the respondent, that "[g]iven the number of times the jury was told the onus was on the Crown generally and in particular in relation to proof of the absence of an honest but mistaken belief, Jury (sic) could not conceivably have thought otherwise". It is significant that the plainly correct directions were given proximately to the jury's retirement.
[39]
[25] Mr Kimmins, for Filewood submitted in writing that the Judge should not have directed the jury that they could convict only if satisfied beyond reasonable doubt of the truth and accuracy of the complainant's evidence unless, as I understand the submission, there were in addition a correct direction on s 24. As I have said, the jury was, overall, appropriately directed on s 24, and the Judge's requirement that the jury scrutinize the complainant's evidence in that way was also appropriate.
[40]
[26] In relation to this ground, Mr Kimmins for Filewood in writing raised a number of factual issues which were pre-eminently for the jury's resolution. He did however raise two areas of criticism of the summing up, to which I should refer.
[41]
[27] He submitted, for example, that the learned Judge unfairly failed adequately to cover the medical evidence. The Judge did make reference to the medical evidence, but Counsel submitted, insufficiently. It is difficult to see how that evidence could have assisted the appellants. Dr Leadbeater's evidence was that the injury to the remnant of the hymen and to the perineum would have required "quite significant force", rendering the complainant's consent unlikely, or a reasonable belief as to consent unlikely. Consistently, on the complainant's evidence, at once upon her feeling pain she objected. Counsel also pointed out that on the doctor's evidence, there must have been more than one application of force, and this was said to be inconsistent with the complainant's account. The complainant said she was woken by what she interpreted to be a punch in her vaginal area. As she was waking she may not have discerned there were two rapid applications of force, or that the force was inflicted by a spread of fingers (especially noting Filewood's admission of digital penetration). Importantly, the doctor's evidence discounted the occurrence of the injuries during consensual anal intercourse, bearing in mind that lubricant was used. In my view, the Judge adequately referred the jury to the medical evidence.
[42]
[28] I turn to the second criticism of the summing up. In summarizing Filewood's Counsel's submissions, the learned Judge referred to the possibility that the complainant was aroused "[p]erhaps dreaming of, or thinking that it was Jacob who was kissing". Filewood's appeal Counsel submitted that more should have been said of this by the learned Judge. Significantly again, no redirection was sought. And the reason is obvious. Filewood's case, as it emerged during the police interview, was that the complainant was responding to Keevers and himself, not Jacob. There is no substance to this criticism of the summing up.
[43]
[29] In his written submissions on the s 24 issue, Mr Kimmins referred extensively to the sexual dealings between the complainant and Jacob, their being drunk, inappropriate comment by other males towards the complainant earlier at the Regatta Hotel, and evidence of the complainant asleep on top of the sheets with Jacob beside her prior to the appellants entering the room. None of that could give rise to an honest and reasonable belief the complainant would later consent to the appellants' sexually interfering with her. Even were the appellants aware of the lurid aspects of the complainant's prior sexual activity with Jacob, that would not provide any reasonable basis for a view they were licensed to make their own approaches. The jury's acceptance of the complainant's evidence left no room for the s 24 defence: her evidence was she did not consent and was, to the critical point, asleep. On her account, there was no basis for any conclusion she invited or encouraged or in any way sanctioned, even tolerated, what was done to her by the appellants.
[44]
Ground two: length and clarity and appropriateness of summing up
[45]
[30] This ground was not the subject of particular development in the submissions made in support of the appeal. Having read and considered the summing up in its entirety, I am not satisfied that the ground is established.
[46]
Ground three: an unreasonable, unsafe and unsatisfactory verdict?
[47]
[31] Mr Hunter, for Keevers, submitted that because of Jacob's evidence that when he awoke, the complainant was kissing Keevers, the jury could not reasonably have been satisfied of guilt, especially in the context of s 24.
[48]
[32] The short answer to this contention is the jury was entitled to reject that evidence of Jacob. Jacob was a friend who had been living with Keevers. The jury may have taken the view that he was disposed toward Keevers. Alternatively, awaking from a drunken and sickly sleep, he may in the partial light have misconstrued what was going on.
[49]
[33] Of course if the jury, having scrutinized the evidence of the complainant, accepted it, then Jacob's evidence on this point, being inconsistent, would necessarily be rejected. I do not consider that the circumstance that Jacob gave that evidence renders the convictions unsafe.
[50]
[34] The complainant's evidence gains substantial support from the circumstances to which I referred at the outset - her challenge immediately upon waking and seeing what was going on, her dressing over her nightie, her fleeing the unit, and the complaint she made forthwith on the emergency line; together with the evidence as to her injuries.
[51]
[35] Mr Walker for Filewood also pursued this ground, on a generally similar basis.
[52]
[36] I would order in respect of each appeal, that the appeal against conviction be dismissed.
[53]
[37] In leaving the appeal against conviction, I make this observation. The debate about the sufficiency of the summing-up on s 24 could have been forestalled had the Judge followed the succinct form of direction suggested in the Supreme and District Courts' Benchbook (no 76.1). As it has turned out, the debate about the sufficiency of the direction has been wasteful of resources, and has fostered disquiet no doubt, in the appellants and the complainant, as to the security of the convictions. The Benchbook should ordinarily be used as at least the basis for the formulation of directions given.
[54]
Applications for leave to appeal against sentence
[55]
[38] The learned Judge sentenced the applicants on the basis they committed the offences upon the complainant while she was asleep, and that there was nothing in her earlier behaviour which had contributed to the commission of those offences. The complainant was a virtual stranger to the applicants, and the complainant was entitled to feel secure from intrusion while in bed in the unit with Jacob. The Judge also properly took account of the adverse subsequent effect upon the complainant.
[56]
[39] Neither applicant had any prior criminal history. The Judge accepted that Keevers' conduct fell into a less serious category, whereas Filewood's was much more serious.
[57]
[40] Mr Hunter submitted that Keevers should have been given the benefit of a community based order, with no conviction recorded. I do however accept the contrary submission for the Crown, that because the offence was committed during the night time, upon a complainant who was asleep, in effect in her own bed, with another virtual stranger present, a custodial term was warranted notwithstanding that the actual assault might not otherwise be characterized as of grave proportions. Mr Meredith, for the Crown submitted however that the term of imprisonment imposed, 12 months, should have been fully suspended. I accept that submission. There was no utility in requiring Keevers, a comparatively young first offender, to serve a mere three weeks imprisonment - of which he has in any case already served one week. Reference may be made to R v Hamilton[2000] QCA 286 para [19] and R v C CA No 160 of 1996, 19 July 1996.
[58]
[41] I would allow Keevers' application for leave to appeal against sentence, and allow his appeal to the extent of ordering that the 12 months imprisonment imposed on 1 April 2004 be suspended at the expiration of the period of custody already served, for an operational period of 18 months.
[59]
[42] As to Filewood, the Judge was rightly concerned that the sentence should deter those who may be inclined to take advantage of a sleeping woman unable to make conscious decisions. Filewood's Counsel submit that the sentence imposed, two and a half years imprisonment suspended after nine months for an operational period of three years, is manifestly excessive. Bearing in mind his conviction, following trial, of a rape which involved substantial digital force, as is likely reflected in the injuries to the complainant (which I believe to be the conclusion properly drawn from the evidence), a rape committed upon a sleeping woman in her own bed during the night time - again, with another virtual stranger present, it is difficult to see how a sentence of that order, necessitating his spending no more than nine months in custody, could reasonably be considered manifestly excessive.
[60]
[43] Reference was made to R v Hatch CA No 320 of 1999, 29 November 1999, where the penalty was 18 months imprisonment for aggravated indecent assault, and R v J[2002] QCA 48, where the sentence for indecent assault was 12 months imprisonment suspended after four months. (I note there was no penetration in J.) In determining this case, where the maximum penalty is life imprisonment, those cases are not of great assistance. But making relevant allowances, I would not regard this sentence as discordant anyway.
[61]
[44] The opportunistic exploitation of a sleeping woman for the sexual gratification of the offender warrants a penalty of some substance, notwithstanding that Filewood desisted when the complainant objected. I regard the sentence imposed here as quite moderate, certainly not manifestly excessive.
[62]
[45] In the case of Filewood, I would refuse the application for leave to appeal against sentence.
[63]
[46] WILLIAMS JA: The charges, the relevant evidence, the critical passages from the summing up, and the sentences imposed on each appellant are all adequately detailed in the reasons for judgment of the Chief Justice which I have had the advantage of reading. In the circumstances it is not necessary for me to repeat any of that detail.
[64]
[47] In a case such as this it is logical for the jury to consider first the issue of the complainant's credibility. If on a consideration of the complainant's evidence the jury is not satisfied beyond reasonable doubt that in fact she did not consent to the activity in question that is the end of the matter; a not guilty verdict must be returned. That result could be brought about either because the jury was persuaded that in fact the complainant consented to the activity, or because they were left in a state of reasonable doubt as to the issue of consent.
[65]
[48] If the jury was not prepared on the complainant's evidence to find lack of consent in fact there would be no need for them to consider a defence based on s 24 of the Criminal Code, which would have to be predicated on a factual basis which of necessity would involve some aspect of the complainant's conduct.
[66]
[49] It is true, as counsel for each appellant submitted, that strictly speaking the jury does not find the offence proved but then considers whether or not there is a defence available which would result in a not guilty verdict being returned. In a case where a s 24 defence is open no offence is committed unless the jury can negative beyond reasonable doubt the mistaken belief as to consent. But whilst that is so, the logical reasoning process must be as I have already indicated. The jury considers the complainant's evidence first and the s 24 defence only becomes material if otherwise the evidence would support a conviction.
[67]
[50] When a s 24 defence is left to the jury the trial judge ordinarily should indicate to the jury the factual basis for that possible defence. There is an evidential onus on the accused person of showing the existence of a state of affairs fit to be considered by the jury evidencing an honest and reasonable mistake of fact. Of course, the jury would also have to be directed as to what constituted an honest and reasonable mistake of fact as to whether the complainant was consenting.
[68]
[51] It was against that background that the learned trial judge here had to sum up to the jury. It has to be said, in my view, that the summing up in question is rather rambling and repetitious. Because of that, some of the passages attacked by counsel for each appellant, if considered in isolation, could be regarded as confusing, or even misleading. For example, if one applied a strict definition to the term "offence" in the passage quoted by the Chief Justice from the summing up at p 179 one could conclude that the summing up was misleading; there was no offence if the s 24 defence was not negatived by the prosecution. But nevertheless the thrust of what the learned trial judge was saying was clear; it was only if the jury accepted the credibility of the complainant when she said she did not in fact consent that it became necessary for the jury to consider the s 24 defence. The position is similar with respect to the use of the expression "get off" in the passage quoted by the Chief Justice from pp 165-168 of the summing up; very colloquial language was used in an endeavour to explain a legal concept to the jury.
[69]
[52] Particularly given the fact that a correct direction was given at pp 206-7 very shortly before the jury retired to consider its verdict I am not persuaded that there were errors in the summing up which would vitiate the trial. It would have been better if the critical directions had been differently phrased but, in my view, the jury would not have been misled with respect to the approach they had to adopt to the evidence given there was an evidential basis for a s 24 defence.
[70]
[53] Particularly given that the appellants were virtual strangers to the complainant, that at the material time she was asleep in bed with her male companion and that on the evidence her physical injuries were the result of the actions of the appellant Filewood, a reading of the evidence does not persuade me that the jury verdicts were unreasonable, unsafe and unsatisfactory.
[71]
[54] I agree with the all the Chief Justice has said in relation to the appeals against conviction, which must be dismissed.
[72]
[55] I also agree, for the reasons given by the Chief Justice, that the sentence imposed on the appellant Filewood was moderate and no basis has been established for interfering with it. As was conceded by counsel for the Crown the appellant Keevers ought not be required to serve any actual term in custody, but, for the reasons given by the Chief Justice, I agree that a custodial sentence was justified as the head sentence.
[73]
[56] The orders of the court should therefore be:
[74]
(i) In application 90 of 2004 (application by Keevers for leave to appeal against sentence) order as follows: Grant leave to appeal, and allow the appeal to the extent of setting aside the order that the sentence of imprisonment be suspended after 21 days and insert in lieu that the sentence be suspended forthwith;
(ii) In appeal 91 of 2004 (appeal by Keevers against conviction) order that the appeal be dismissed;
(iii) In appeal 98 of 2004 (appeal by Filewood against conviction) order that the appeal be dismissed;
(iv) In application 132 of 2004 (application for leave to appeal against sentence by Filewood) order that the application be dismissed.
[75]
[57] PHILIPPIDES J: I agree for the reasons set out in the judgment of the Chief Justice that each appeal against conviction should be dismissed. As regards Filewood, I would also refuse the application for leave to appeal against sentence. However, in respect of Keevers, I agree for the reasons stated by the Chief Justice that the application for leave to appeal against sentence should be allowed and that the appeal against sentence should be allowed to the limited extent of suspending the sentence so as to not require any further period of custody to be served.