Ground 11: That the jury was misdirected as to the elements of the offences charged
74 This ground was not expressed in the notice of grounds of appeal filed but the Crown does not object to leave being granted to add this ground and such leave should be granted.
75 The directions which the learned trial judge gave to the jury on the elements of the offences charged in the first and the third counts were as follows (SU 9):
"Now the legal elements in the first and third counts - but remember they are separate and that the first has an alternative - involve, if you can think of it three things, the act, focus on the woman, focus on the man.
The act is sexual intercourse. The law says that the entrance or the penetration by the penis into a vagina is sexual intercourse. There has to be some degree of penetration. You do not have to be satisfied by how much, as long as there is some. You do not have to be satisfied whether the penis is erect or not. You do not have to be satisfied that there is a climax or not. You do not have to be satisfied that the man is enjoying it or not. It is the basic act, the penis penetrating the vagina. Now that applies indeed to all three of the charges, the act."
76 His Honour then went on to remind the jury that the appellant denied the act of intercourse charged in the first count. His Honour then proceeded (SU 10):
"The second aspect is the focus on the woman. She was not consenting. [The complainant] has told you after a history of physical abuse, in effect her will was overborne by Mr Kennedy and that if he required something of her against her will she gave it to him. She did not stand in opposition to him but she was not consenting.
Now if it stopped there it would be very unfair because the man would not know whether the woman's consenting or not and the mere fact that a woman says that she was not consenting would be the end of the matter so the law now focuses upon the man.
Now in some circumstances it is glaringly obvious on the woman's version, that she is not consenting. Indeed in the first charge here [the complainant] says she was screaming out. She was indicating she was not consenting."
77 His Honour then went on to remind the jury (SU 11):
"All right, how does the Crown indicate in the evidence that the man Mr Kennedy knew that [the complainant] was not consenting. Well there is the direct evidence that she was making her protest audible by screaming, that she was in that way rejecting the advance by Mr Kennedy.
Now the law goes a little further than directly seeing the woman objecting to the event and says that if a man in fact does not care whether the woman is consenting or not but he has his way with her, to use the old words, he is reckless. Reckless meaning that he does not care but he goes ahead and does it anyway.
So the Crown says in the first charge, even if you are not satisfied that Mr Kennedy directly appreciated from [the complainant] her opposition he went ahead in circumstances where he did not care whether she was consenting or not and he had sex with her."
78 His Honour then went on to give directions about the third count (SU 13):
"Count number 3, same set of ingredients, act, focus on woman, state of mind, not consenting. Focus on man, state of mind, he believed, well he knew that she was not consenting.
Here the defence is it was a consensual act. She was consenting, Mr Kennedy believed she was consenting and that the circumstances were such that he was, in effect, entitled to believe that . When you look at it there was not something that was occurring that would indicate to him that he was acting recklessly, that he was going to have sex whether she wanted it or not, so they are really different scenarios as it were, even though the sexual intercourse incident runs between all of them, but you do have to approach them on a different basis. First one you are determining did the act occur. The third one you do not have to determine did the act occur because it is agreed that it occurred . What you have got to concern yourself with on the third one, standing as I remind you, as a separate trial as it were, is was there consent, or has the Crown proved that there was no consent and has the Crown proved that Mr Kennedy knew that [the complainant] was not consenting .
So basically the first charge is are you satisfied the act occurred. The third charge is are you satisfied there was no consent and that Mr Kennedy knew that no consent . That is it to contrast number 1 and number 3 because they are basically, not basically, they are the same set of legal ingredients."
(Emphasis added)
79 The complaint is made that the trial judge failed to direct the jury that if the jury considered it to be a reasonable possibility that the appellant believed the complainant was consenting he should be acquitted. In instructing the jury in the words "Mr Kennedy believed she was consenting and that the circumstances were such that he was in effect entitled to believe that" introduced an objective test and that the jury should have been instructed that the test was a subjective one.
80 In R v Hemsley (1988) 36 A Crim R 334 the Court of Criminal Appeal considered the following directions of the trial judge to be correct (set out at 336):
"You should remember we are considering the situation where the girl in fact did not consent. In such a situation the man's state of mind at the time of the act of intercourse might be that he actually knew that she was not consenting. That is a guilty state of mind and if the evidence satisfies you that that was the state of mind of the accused at the time of the act of intercourse then the third element of the charge has been made out.
On the other hand, the man's state of mind might be that he honestly, though wrongly, believed the girl was consenting to intercourse. That is not a guilty state of mind. It is for the Crown to prove that the accused had a guilty mind and so if as to either charge the Crown has failed to prove that at the time of intercourse the accused did not honestly believe that the girl was consenting, then in respect of that charge you would have to say that this third element of the defence is not made out and return in respect of that charge a verdict of not guilty.
Between those two situations, on the one hand, the knowledge that the girl did not consent, and on the other hand, an honest though mistaken belief that she does, there lies the third possible situation where the man does not actually know either way, but is reckless as to whether the girl is consenting or not. That is to say, his state of mind is such that he realises the possibility that she is not consenting, but chooses to proceed to have intercourse notwithstanding. The law says that is a guilty state of mind. The law says that a man who is reckless as to whether the woman consents or not is deemed to know she is not consenting. That is to say, he is to be treated as if he knows in fact that she does not consent."
81 Later, in R v Newham (unreported, NSWCCA, 26 November 1993) Clarke JA, having referred to the direction in Hemsley said:
"The importance of the passage I quoted is that it directs attention wholly and solely to the subjective state of mind of the accused person. The court is not concerned with an objective test, but whether on the facts proved the accused person had the requisite knowledge or, alternatively, acted recklessly in the way there described."
82 It is plain from a consideration of the above authorities that on the issue of knowledge, it is the subjective state of mind of the accused person which is to be considered. See also O'Meagher (unreported, NSWCCA, 10 February 1997). I now return to the direction in the present case which has attracted this ground of appeal.
83 Referring to the first of the passages emphasised in the extract from the summing up, it was submitted that this introduced an objective test contrary to the authorities reviewed.
84 It was submitted that this was a significant error because the complainant had given evidence that she made no physical movements to resist as she was scared and the complainant said only that her mother and her brother would be home soon. Since their verdict indicates that the jury must have believed the complainant was not consenting, the appellant's belief or the lack of it assumed critical significance.
85 The Crown has submitted that the first of the passages emphasised in the direction under consideration was not a direction of law at all but a review of the way the appellant put his case. The directions of law are to be found, the Crown submits, in the second and the third of the passages emphasised. Here the jury was told that the Crown had to prove lack of consent and knowledge in the appellant that there was lack of consent and this involved no misdirection.
86 It seems to me that the Crown's analysis of the first of the emphasised passages is correct. This being so, the charge to the jury only addressed two of the three situations considered in Hemsley. The jury should also have been directed as to recklessness as the jury was charged in Hemsley. However, the lack of any direction about this third consideration did not operate against the appellant. As charged, the jury had to be satisfied, absent consent, that the appellant knew the complainant was not consenting. The appellant lost no chance of acquittal on the third count because the jury was not told that if he realised the possibility that the complainant was not consenting but chose to proceed to have intercourse notwithstanding, this constituted recklessness.
87 In my opinion Ground 11 has not been established.