R v Mueller

R v Mueller [2005] NSWCCA 47 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Hunt AJA at 1; Studdert J at 8; Hulme J at 131

CATCHWORDS: Assaults with acts of indecency - whether summing up appropriate on issue of "consent" and "reckless indifference" - whether necessity for Shepherd style direction as to knowledge complainant not consenting or recklessly indifferent to whether or not complainant was consenting. Acquittal on two of five counts - whether verdict of jury unreasonable.

Crimes Act, ss 61D, 61M, 61R LEGISLATION CITED: Criminal Appeal Act, s 6

Fitzgerald v Kennard (1995) 38 NSWLR 184 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Question of Law (No. 1 of 1993) (1993) 59 SASR 214 R v Beserick (1993) 30 NSWLR 510 R v Blayney & Anor [2003] SASC 405 CASES CITED: R v Clark (unreported, NSWCCA, 17 April 1998) R v Henning (unreported, NSWCCA, 11 May 1990) R v Kitchener (1993) 29 NSWLR 696 R v Morgan (1970) VR 337 R v Shepherd (No. 5) (1990) 170 CLR 573 R v Tillott (1991) 53 A Crim R 46 R v Tolmie (1995) 37 NSWLR 660

Ms D. Woodburne (Crown) COUNSEL: Mr D. Patch (Appellant)

S. Kavanagh (Crown) SOLICITORS: Rutland's Law Firm (Appellant)

IN THE COURT OF CRIMINAL APPEAL 2004/2115

HUNT A-JA STUDDERT J HULME J

Friday 25 February 2005 REGINA v ALEXANDER MUELLER Judgment 1 HUNT A-JA: I agree with the orders proposed by Studdert J, for the reasons he has given.

2 I also agree with the additional comment made by Hulme J. There will inevitably be difficulties for a jury in understanding how consent may at the same time be both (a) freely and voluntarily given and (b) given reluctantly or after persuasion. If both directions are given because of the necessity to do so in the particular case, the judge should also give assistance to the jury as to how each of those directions is relevant to the facts of the particular case, with an explanation which removes the likelihood of confusion.

3 The summing-up in this case illustrates the dangers of including in directions concerning absence of consent and knowledge of that absence every statement made by this Court and by other courts on the subject whether directly relevant to the particular case or not.

4 The Chief Justice's Foreword to the Criminal Trial Courts Bench Book issued by the Judicial Commission of New South Wales repeats the warning often given in such publications that, in order to ensure a fair trial, the summing-up must be tailored appropriately to the particular circumstances of each case. The Foreword identifies the danger that the inclusion of every statement which may be very relevant in other cases, but only peripherally relevant in the particular case, converts the summing-up into a series of formulae which are not necessarily appropriate to the facts and circumstances of the particular case.

5 At the commencement of this trial, the Crown prosecutor produced for the judge a series of just such statements, and the judge incorporated them in his summing-up and repeated them many times throughout the unnecessarily long charge to the jury. (The issues were not many, but the summing-up continued for approximately a day and a half.) That is not the way in which a summing-up should be framed.

6 The difficulty which the judge had in comprehending the nature of the repeated complaint being made by Counsel for the accused in relation to his summing-up on these issues may have been caused to some extent by the difficulty Counsel had in articulating his complaint, but it was also caused by the judge's rigid insistence in fitting the direction which had previously been missing into the series of formulae which he had already given, instead of giving a short clear direction which incorporated only those which were directly relevant and necessary for the circumstances of this case.

7 In the end, however, the correct directions were given. 8 STUDDERT J: The appellant, Alexander Mueller, stood trial in the District Court. The indictment presented against him charged five counts of assault with act of indecency in circumstances of aggravation. These offences were allegedly committed in contravention of s 61M of the Crimes Act. The appellant was acquitted on the first and second counts but convicted on the third, fourth and fifth counts. 9 Following conviction the appellant was sentenced to concurrent terms of imprisonment of two years six months to be served by way of periodic detention. 10 The appellant now appeals to this Court, the appeal being limited to the convictions recorded. 11 Each of the offences charged was alleged to have been committed on 25 April 2001. The complainant was a young woman, twenty-two years of age at the time, who lived at a home conducted by a caring institution. The complainant lived at that home because she was suffering from a disability known as Asperger's Syndrome, and the complainant also suffered from schizophrenia. 12 The appellant was employed at the home where the complainant and another disabled person were living, and it was the appellant's responsibility to provide care and assistance in the home. 13 The events giving rise to the counts in the indictment allegedly occurred on the night of 25 April 2001 after the complainant had been returned to the home by her father. 14 According to the complainant, the appellant and herself were on a couch in the lounge room and the complainant put her feet on the appellant's lap. Her evidence was that the appellant touched and kissed her breasts. Her further evidence was that the appellant proceeded to bite her nipples. These alleged offences were the subject of counts one and two, the counts on which the jury returned verdicts of not guilty. 15 The complainant gave evidence of further misbehaviour by the appellant which gave rise to the remaining three counts on which the appellant was convicted. The third count concerned the touching of the complainant's vulva outside her clothing. The fourth count related to the complaint that the appellant kissed the complainant's vulva outside her underclothing. The fifth count was supported by the complainant's evidence that the appellant subsequently sat with the complainant on the bed in her room, took hold of her hand and forced her to touch his penis. 16 The appellant admitted the physical acts to which counts 3 and 4 related, but his evidence was to the effect that such activity was consensual. The appellant denied he forced the complainant to touch his penis, but said he held her hand on his leg and that the complainant stretched out her hand and touched his penis with her fingertips. 17 The appellant raised seven grounds of appeal, to a consideration of which I now turn.

GROUND 1: The trial judge's directions to the jury on the question of the lack of consent of the complainant were in error. 18 The Crown put the issue of consent to the jury in two ways:

(a) that the complainant did not consent because she lacked the capacity to do so;

(b) alternatively, that the complainant did not consent in fact. 19 The jury was given lengthy directions as to the issue of consent which appear in a number of places in the summing up, and it is necessary in considering this ground of appeal to regard the totality of the instruction given. For the purposes of this ground however, the instruction about the issue of capacity is not of direct concern. In the extracts which I will set out, emphasis is added at various places. 20 The jury was given the following instruction (SU 12.9-14.5): "In order to establish the unlawfulness of the act, and hence an assault, for the purposes of this case the Crown must prove beyond reasonable doubt that the act was done by the accused without the consent of [the complainant]. It must also be proved by the Crown, beyond reasonable doubt, that the accused knew [the complainant] was not consenting, or that he was reckless as to whether she was consenting. It should be noted at the outset that the accused does not have to prove that [the complainant] consented. It is for the Crown to prove, beyond reasonable doubt, that she did not consent. In this present case the Crown submits that you, the jury, would find that [the complainant] did not consent because you would be satisfied beyond reasonable doubt that she did not have the capacity to consent. Now that is the first way the Crown puts its case; that she did not have the capacity to consent. You have heard the Crown Prosecutor say quite a deal to you about that. But quite separately from that the Crown submits you would be satisfied beyond reasonable doubt that she did not consent because the overall effect of her evidence is that she did not consent. The defence submission, on the other hand, is that she did have the capacity to consent, and that it is apparent from what she said in evidence, particularly in the course of cross examination, that she did consent. In any event the defence submits it is plain that the Crown has not proved what it must prove; that is, proved beyond reasonable doubt that she did not consent. In making their respective submissions the Crown and the defence rely upon different aspects of the evidence given by [the complainant], and different aspects of the evidence given, in particular, by Professor Nunn, and I will be reminding you of that evidence in due course. The question remains what is meant by the word consent; and this is vital, members of the jury, what I'm about to say to you, absolutely vital to this case . Unfortunately there is a fair bit of repetition in what I am saying and what counsel have already said to you, but I am obliged by law to give you these directions; they are all important and some of them are particularly important, and I simply emphasise at this point that what I am about to say now about consent is actually vital to this whole case. Consent involves conscious and voluntary permission by [the complainant] to engage in each of the five incidents of a sexual nature referred to in the charges in the indictment.'

And then (at SU 15.3-18.4): " Members of the jury, consent may be given verbally, or it may be expressed by actions. Similarly, absence of consent does not have to be in words. It also may be communicated in other ways. Consent which is obtained after persuasion is still consent. However, the law specifically provides that a person who does not offer actual physical resistance to sexual conduct is not, by reason only of that fact, to be regarded as consenting to the sexual act. It is all important but that is important; I will say it again. The law specifically provides that a person who does not offer actual physical resistance to sexual conduct is not, by reason only of that fact, to be regarded as consenting to the sexual act. Consent means consent freely and voluntarily given. Submission is not the same as consent. This is a matter that the Crown relies upon heavily. The Crown has put to you more than once, in the course of her address, that any way you look at it, all that [the complainant] could be said to have done was to have submitted. So again I repeat that. Submission is not the same as consent. Silence or absence of positive resistance to an unwanted sexual advance is not to be taken as consent, or as communication of consent. As I have said, members of the jury, the capacity of [the complainant] to consent is in issue. The Crown asserts that she did not have the capacity to consent because of the disabilities from which she suffers. Now this is very important members of the jury; where capacity to consent is in issue what the Crown must prove, beyond reasonable doubt, is that [the complainant] did not have sufficient knowledge or understanding to comprehend that what was proposed to be done was the physical fact relied upon by the Crown in respect of each of the five charges. Or, that she did not have sufficient knowledge or understanding to comprehend that the act proposed in each case was one of a sexual nature as distinct from an act of a totally different character. Now as I recall it, Mr Patch in the course of his submissions, put that to you in virtually precisely the same terms, as I recall it; and what he said was obviously perfectly correct. Now this, too, is really vital to this whole case, so I intend saying that again members of the jury. Where capacity to consent is in issue, as it is here, what the Crown must prove, beyond reasonable doubt, is that [the complainant] did not have sufficient knowledge or understanding to comprehend that what was proposed to be done was the physical fact relied upon by the Crown in respect of each of the five charges; or, that she did not have sufficient knowledge or understanding to comprehend that the act proposed in each case was one of a sexual nature, as distinct from an act of a totally different character. Members of the jury this, too, is vital to this case, what I am about to say. I emphasise that capacity, capacity to consent, does not involve, as a matter of law, knowledge or understanding of the social consequences of the act, or the social significance of the other person's intention. It does not, does not involve, as a matter of law, as a matter of law, knowledge or understanding of the social consequences of the act or the social significance of the other person's intentions. That being so, it is essential that you be very careful when considering Professor Nunn's evidence, very careful, as those are matters to which he makes reference. It may well be, as he has said, that Asperger sufferers may not have that type of knowledge or understanding. However, if [the complainant] has knowledge or understanding of what the act comprises, and of its character, in the sense abovementioned, then she has all that the law requires for capacity to consent. That knowledge or understanding need not 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." 21 Counsel for the appellant at trial asked the judge to revisit the issue of consent, and that application prompted these further directions (SU 51.9-52.4): "The first direction concerns this very important matter of consent. I do not intend repeating everything that I said yesterday in relation to that but you might recall that I did say to you that consent involves conscious and voluntary permission by [the complainant] to engage in each of the five incidents of a sexual nature referred to in the charges in the indictment. I told you that consent may be given verbally or it may be expressed from actions. I should have added to that that it also may be implied from the circumstances. I am emphasising that I am adding that to it. So consent, members of the jury, may be given verbally, or it may be expressed by actions, or it may be implied from the circumstances." 22 In reminding the jury of the way the Crown put its case, the judge later said (SU 72.9-73.8): "Members of the jury, it is important to understand that the Crown case in relation to consent is put two ways. First, the Crown submits that on the basis of the evidence you have heard from [the complainant] herself and from Professor Nunn the Crown has proved beyond reasonable doubt that [the complainant] did not have the capacity to consent, and therefore, did not consent. If you accept that submission you would still need to go on to consider if the Crown has proved beyond reasonable doubt that the accused knew she was not consenting, or if he was reckless as to whether she was consenting or not. If you were to be satisfied of either of those matters the Crown would have succeeded in proving beyond reasonable doubt that [the complainant] did not consent, that the accused knew she was not consenting and that the act in question was unlawful and, therefore, amounted to an assault. The second way the Crown puts its case on consent is to submit that even if [the complainant] had the capacity to consent she did not in fact consent. As I have said, the Crown relies upon her evidence that she told the accused to stop when he was biting her nipple, and that when he grabbed her hand he made her touch his penis, and that she tried to pull away but he would not let her. As to the other alleged acts the Crown submits that it is plain on the evidence that [the complainant] did not consent to any one of them. She may well have submitted but she did not consent. Now that, in the very broadest terms, is how it seems to me the case for the Crown is put." 23 The judge was later requested by counsel to direct the jury that silence did not necessarily mean absence of consent, and in response to that request the jury was further directed (SU 103.9-104.3): " A woman may consent to a sexual act for a variety of reasons but if she consciously permits it, that act is not without her consent. As I said earlier to you, silence to an unwanted sexual act is not to be taken as consent. On the other hand, silence, of itself, is not to be taken as indicating no consent. There are many ways in which both consent and absence of consent may be indicated." 24 Questions asked by the jury prompted his Honour to give the following further instruction (SU 144.8-146.3): "The Crown contends and submits that she did not have the capacity to consent. Separately from that, the Crown submits you would be satisfied beyond reasonable doubt that she did not consent because the overall affect of her evidence is that she did not consent. The defence submission, on the other hand, is that she did have the capacity to consent and that it is apparent from what she said in evidence, particularly in the course of cross examination by Mr Patch, that she did consent. In any event, the defence submits it is plain that the Crown has not proved what it must prove, that is prove beyond reasonable doubt that she did not consent. In making their respective submissions, the Crown and the defence rely upon different aspects of the evidence given by [the complainant] and different aspects of the evidence given by Professor Nunn. The question remains what is meant by the word consent. Consent involves conscious and voluntary permission by [the complainant] to engage in each of the five incidents of a sexual nature referred to in the charges in the indictment. The accused concedes that some of those incidents in fact took place. He denies, in particular, that he did the act the subject of the fifth charge, that is he denies taking [the complainant's] hand and placing it on his penis. Clearly, the first matter the Crown must prove beyond reasonable doubt is that the alleged act took place. If it fails to prove that it did take place, of course the accused must be found not guilty of that particular charge. I went on to say this: consent may be given verbally or it may be expressed by actions or implied from the circumstances. Similarly, absence of consent does not have to be in words. It also may be communicated in other ways. Consent which is obtained after persuasion is still consent. However, the law specifically provides that a person who does not offer actual physical resistance to sexual conduct is not by reason only of that fact to be regarded as consenting to the sexual act. Consent means consent freely and voluntarily given. Submission is not the same as consent. Silence or absence of positive resistance to an unwanted sexual advance is not to be taken as consent, or as communication of consent.' 25 Once again the judge returned to the issue of consent (SU 152.4-152.8): "What I said was this: a women may consent to a sexual act for a variety of reasons, but if she consciously permits it, that act is not without her consent. I think perhaps what I should say is this: a woman may consent to a sexual act for a variety of reasons, but whatever the reason, if she consciously permits it, that act is not without her consent. I went on to say, as I said to you earlier, silence to an unwanted sexual act is not to be taken as consent. On the other hand, silence of itself is not to be taken as indicating no consent. There are many ways in which consent and absence of consent may be indicated." 26 Counsel submitted that further instruction was warranted on the concept of "submission". Counsel reduced to writing the further directions which he sought and the jury was brought back into court and given further instruction consistent with the content of counsel's written submission (SU 10.8-11.5, 30 June 2003): "Members of the jury when we adjourned on Friday there was one matter outstanding, one of the questions you asked. That was a question you put to me in relation to the meaning of 'submission' and I did not answer that specifically so I thought I better bring you back in now to answer that. In relation to that matter the Crown must prove beyond a reasonable doubt that [the complainant] did not consent to the acts alleged by the Crown in respect of each charge. 'Submission' means acquiescing in something. That may be with consent or it may be without consent. That is a question of fact taking into account all the circumstances. Silence, or the absence of positive resistance, of itself does not necessarily mean that a woman is consenting, nor of itself does it necessarily mean that a woman is not consenting. The first issue is has the Crown proved beyond a reasonable doubt that [the complainant] did not consent to the act alleged. If you find that the Crown has proved that matter, the next issue is has the Crown proved beyond reasonable doubt that the accused knew she did not consent, or has it proved beyond reasonable doubt that he was reckless as to whether she consented." 27 The instruction last given assumes particular significance when considering this first ground. 28 Mr Patch, in oral submissions, distilled his earlier written submissions on this first ground, stating his essential complaint to be that the judge failed to instruct the jury that lack of physical resistance is not necessarily an indication or a communication of consent or lack of consent. Mr Patch submitted that having regard to the content of the instructions earlier given, what was required on 30 June 2003 in the final directions was an unambiguous direction as to the significance of an absence of actual physical resistance. 29 I do not agree with that submission. In my opinion the direction: "Silence, or the absence of positive resistance, of itself does not necessarily mean that a woman is consenting nor does it necessarily mean that a woman is not consenting"

was sufficient. In essence, Mr Patch complained that the word "physical", rather than the word "positive", should have been used in the above passage, but it seems to me that the words "positive resistance" convey the meaning of "physical resistance". Further, I note that in counsel's written submission placed before the trial judge before the instruction last set out was given, counsel wrote: "Silence, or the absence of positive resistance, of itself does not necessarily mean that a woman is consenting. Nor, of itself, does it necessarily mean that a woman is not consenting." 30 Obviously counsel considered, when preparing the terms of his written submission during the trial, the expression he used, and which the judge adopted, was adequate in the circumstances. I consider he was correct in that regard. 31 It is regrettable that the jury was given as much duplicated instruction on the consent issue as was given, but I see no error in what the jury was last told on 30 June 2003. 32 This first point fails. 33 The second matter complained of in relation to Ground 1 is that his Honour erred in the direction: "Consent means consent freely and voluntarily given." The judge was asked to withdraw that direction but declined to do so. 34 It was submitted that the words "freely and voluntarily" unduly narrowed the concept of consent, conveying the notion that consent given after persuasion or with reluctance was not really consent at all. 35 The words complained of appear in s 324G of the Western Australian Criminal Code where consent is defined. They also appear in the Queensland Criminal Code. In Victoria, consent is defined by s 36 of the Crimes Act as meaning "free agreement". However, there is no statutory definition in New South Wales. Section 61R of the Crimes Act addresses the concept of consent, not to define it but rather to deal with situations where consent is vitiated. In R v Clark (unreported, NSWCCA, 17 April 1998), Simpson J considered that consent for the purposes of New South Wales law, just as for the purposes of Western Australian law, means consent "freely and voluntarily given". The other members of the court in Clark did not expressly address the definition of consent but were content to address the deficiencies in the summing up under challenge on that appeal. 36 The common law concept of consent was considered in South Australia in Question of Law (No. 1 of 1993) (1993) 59 SASR 214. The court was there concerned with the correctness of directions given to a jury in a trial concerning offences of rape. In that case King CJ said, on the issue of "consent" (at 220): "The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must, of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats." 37 I respectfully adopt what the Chief Justice said in the above passage as succinct statement of common law principle. 38 In the same case Perry J said (at 233): "It was perfectly correct for the learned trial judge to state, as he did, 'submission is not consent'. The law is clear that consent must be freely given and acquiescence to intercourse by reason of any threat or duress may properly be regarded as negativing consent for the purposes of the law of rape…" 39 In the same case Duggan J said (at 237): "As the learned trial judge told the jury, in the case of rape consent means a free and voluntary engagement in the act of sexual intercourse at the relevant time." 40 In R v Blayney & Anor [203] SASC 405, Debelle J, citing the above authority, said at para 20: "In the context of the law of rape, it is well established that consent must be free and voluntary." 41 Whilst there was no statutory requirement that the judge here direct the jury that consent must be freely and voluntarily given, I do not consider that this direction was erroneous. The direction given must be viewed in context, not in isolation. The judge distinguished "consent" from "submission", and he also cautioned the jury against treating silence or absence of positive resistance as amounting to consent. The judge directed the jury that consent obtained after persuasion was still consent. The judge directed the jury that "A woman may consent to a sexual act for variety of reasons, but whatever the reason, if she consciously permits it, that act is not without her consent." 42 A trial judge must always be careful to fashion directions that are appropriate to the circumstances of the particular case, avoiding the automatic but non essential use of particular words and expressions. However, viewed in the context of the summing up in this case, there was no misdirection in instructing the jury that consent means consent freely and voluntarily given. 43 In my opinion, Ground 1 has not been established.

GROUND 2: That the directions to the jury on the question of whether the appellant was recklessly indifferent to whether the complainant consented were in error 44 The relevant directions were in the terms following: "As I mentioned earlier the Crown must prove beyond reasonable doubt, that the accused knew [the complainant] was not consenting, or that he was reckless as to whether she was consenting. So the question arises, what does 'reckless' mean. In order to establish that the accused was acting recklessly, it must be proved beyond reasonable doubt, that he either realised the possibility that [the complainant] was not consenting, but went on regardless, or he simply failed to consider the question of whether or not she was consenting, and just went ahead with a sexual act when the risk that she was not consenting would have been obvious to a person of the accused's mental capacity, if he had turned his mind to it." 45 Counsel for the appellant contended at the trial that it was not appropriate for the jury to be given the instruction concerning inadvertent recklessness. That submission has been maintained in this Court and forms the basis of Ground 2. It is contended that the trial judge was wrong in giving the alternative direction on recklessness in the passage italicised above. 46 The appellant's submissions call for consideration of earlier decisions of this court in Henning (unreported, NSWCCA, 11 May 1990; Kitchener (1993) 29 NSWLR 696; and Tolmie (1995) 37 NSWLR 660; and of the Court of Appeal in Fitzgerald v Kennard (1995) 38 NSWLR 184. 47 In Henning the concept of recklessness was considered by the court in relation to charges of sexual assault. The court was constituted by Gleeson CJ and Campbell and Mathews JJ. Their Honours said (at p 31): "…We do not think it follows that a conscious advertence to the possibility of non consent is necessary to a finding of recklessness under s 61D(2). A failure to advert at all to the question of consent, in other words treating it as an entirely irrelevant factor, would almost certainly amount to either knowledge or recklessness if consent was in fact withheld." 48 It is to be observed that Henning referred to s 61D(2) of the Crimes Act. That section is in terms similar to s 61R(1) of the Crimes Act, which latter section now applies to sexual intercourse offences under ss 61I, 61J and 61JA. 49 In Kitchener it was held that where consent to sexual intercourse was withheld a failure by the offender to advert at all to the possibility that the complainant was not consenting necessarily meant that the offender was "reckless as to whether the complainant was consenting for the purpose of s 61D(2) of the Crimes Act" Carruthers J said (at p 730): "Leaving aside those cases where the accused may be incapable of forming the requisite intent, I consider that where consent is withheld, a failure to advert at all to the possibility that the complainant is not consenting, necessarily means that the accused is 'reckless as to whether the other person consents' within the meaning of s 61D(2). Such a conclusion is, in my view, consistent with both logic and legal principle." 50 Those remarks of Carruthers J as to the application of s 61D(2) would apply equally to the language of s 61R(1). 51 In Kitchener Kirby P expressed his agreement with Carruthers and identified sound reasons of policy supporting the instruction the jury was given as to the meaning of what is "reckless". The President said (at 697): "To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure of the accused to give a moment's thought to that possibility, is self-evidently unacceptable. In the hierarchy of wrong-doing, such total indifference to the consent of a person to have sexual intercourse is plainly reckless, at least in our society today. Every individual has a right to the human dignity of his or her own person. Having sexual intercourse with another, without the consent of that other, amounts to an affront to that other's human dignity and an invasion of the privacy of that person's body and personality. It would be unacceptable to construe a provision such as s 61D(2) so as to put outside the ambit of what is 'reckless' a complete failure to advert to whether or not the subject of the proposed sexual intercourse consented to it or declined consent. Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women. Our law is not unprincipled or inadequate in this regard. Nor is the construction of s 61D (2) preferred by me inconsistent with the basic rule that the Crown must prove beyond reasonable doubt the requisite intent on the part of the accused. The Crown does so, relevantly, by showing that the accused is 'reckless' as to whether the other person consents to the sexual intercourse. This can be shown not only where the accused adverts to the possibility of consent but ignores it, but also where the accused is so bent on gratification and indifferent to the rights of the victim as to ignore completely the requirement of consent." 52 In Tolmie the court was again concerned with the question of recklessness, this time for the purpose of s 61R(1) of the Crimes Act. In this case it was held that where an accused person has not considered the issue of consent and the risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused's mental capacity had he turned his mind to it, the accused is to be taken to have satisfied the mens rea referred to by the word "reckless" as used in s 61R(1). Kirby P said (at 672): "It follows from the decisions in this jurisdiction of R v Hemsley, R v Kitchener, R v Henning , and like decisions in other jurisdictions such as R v Reid, R v Caldwell and R v Lawrence in the House of Lords, that, where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused's mental capacity if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word 'reckless' in s 61R of the Crimes Act 1900. This would apply to situations where consent has been withdrawn during intercourse where the accused was not continuing with the honest belief that the victim was in fact consenting." 53 Each of the above cases of Henning, Kitchener and Tolmie concerned the statutory concept of recklessness under either s 61D(2) of the Crimes Act or s 61R(1) thereof. The issue there was whether there was consent to sexual intercourse. 54 Mr Patch submitted this was a point of distinction between those authorities and the present case which involves the application of the common law because s 61R does not apply to an assault with act of indecency. 55 It was the submission of Mr Patch that the common law does not recognise the concept of inadvertent recklessness. The contrary was determined by the Court of Appeal in Fitzgerald v Kennard (supra). There it was held by majority that the necessary intention for indecent assault extended to non-inadvertent recklessness. Sheller JA concluded (at 195) that "…recklessness is demonstrated by an indifference whether the party is a consenting party or not. In this case the respondent said that: 'It didn't enter my mind' whether the victim may not have wanted him to touch her." 56 In the same case Cole JA said (at 204): "It was argued by Mr Byrne that in circumstances where the Crown could not prove that the accused knew consent was absent, the onus was upon it to establish that the accused believed that consent may be absent but nonetheless decided to proceed with the offending actions. He contended that the Crown in this case was seeking to change that established position at law by asserting that it was sufficient for the Crown to establish in the accused 'absence of belief in consent'. The first of these alternatives he described as 'advertent recklessness' in that the accused must be shown to have adverted to the question whether consent was present or may be absent. The latter he described as 'inadvertent recklessness' because the recklessness in proceeding with the offending acts occurred absent any belief one way or the other concerning the existence of absence of consent. In my opinion this submission mis-states the law so as to create an apparent but unreal distinction. If the Crown proves, to adopt the words in R v Kimber, that the accused was 'indifferent to her feelings and wishes', that is, to whether she was or was not consenting, such that it can be said that he 'couldn't care less' in that regard, recklessness in relation to consent is established. If the Crown established, to the satisfaction of the tribunal of fact, either that the accused believed that consent may be absent, or that he was unaware whether consent was present or not and, uncaring in that regard, pressed on with his actions, in my opinion it would be established that the accused was reckless as to whether the complainant consented or not." 57 Kirby P dissented in Fitzgerald, and Mr Patch submitted that this Court should not follow Fitzgerald. It was acknowledged in argument that Fitzgerald has been followed by trial judges in cases of assault with act of indecency and the decision has now stood for many years. It is not distinguishable, and I am not persuaded that it was incorrectly decided. Moreover, I cannot perceive any sound reason for having a different notion of recklessness for offences involving an act of sexual intercourse from offences involving assault with an act of indecency. 58 The instruction given by the trial judge to this jury was given consistently with the principles determined in the authorities reviewed, and in particular in accordance with Fitzgerald v Kennard. 59 Mr Patch submitted in the alternative in relation to this second ground that if reckless inadvertence is to be considered in connection with an offence of assault with an act of indecency it would only apply where there is a decision taken by the offender not to consider the issue of consent. That submission seems to me to introduce an extremely artificial element and in any event had the jury been instructed in accordance with that submission, the instruction would have been contrary to the principles in the cases to which I have above referred. In my opinion, the trial judge was correct in the instruction given on the issue of recklessness. 60 There was one further submission Mr Patch made about the subject instruction. He submitted that its expression could have distracted the jury, leading it to believe that it ought to apply an objective test as to the issue whether it was apparent or ought to have been apparent that the complainant was not consenting. I am not attracted by that submission. His Honour specifically directed the jury that it was the accused's state of knowledge or belief with which it was concerned, not the knowledge or belief of some other person. 61 I conclude therefore that Ground 2 fails.

GROUND 3: The trial judge should have given the jury a "circumstantial evidence" direction in respect of the element of the offence that the appellant knew that the complainant was not consenting, or was recklessly indifferent to whether or not she was consenting 62 Application was made at the trial for directions in these terms (see SU 49-50.2): "If the jury were to infer or conclude from all the circumstances that the accused knew that [the complainant] was not consenting, or that the accused was recklessly indifferent to whether or not she was consenting, such an inference or conclusion against the accused would have to be the only reasonable inference or conclusion available in the circumstances before the jury could act on it."

And, further: "If there is in the circumstances a view of the evidence reasonably open which is consistent with the innocence of the accused, it would follow that the Crown has not proven its case in that regard beyond reasonable doubt and you must find the accused not guilty." 63 The trial judge refused to give those directions. 64 Mr Patch submitted that the Crown relied upon circumstantial evidence to prove the state of mind of the appellant and, because of the fundamental importance of this issue at the trial, the directions sought were warranted. 65 The obligation to give a circumstantial evidence direction is not an invariable one where circumstantial evidence is relied upon, even in a truly circumstantial evidence case: see R v Shepherd (No. 5) (1990) 170 CLR 563 per Dawson J at 578; and R v Tillott (1991) 53 A Crim R 46 and 50. 66 Absent an admission, proof of the state of mind of an accused person must depend upon circumstantial evidence. Yet I do not understand the authorities to require that a Shepherd-style direction should be given in such cases as a matter of routine. Indeed, Tillott (supra) is authority to the contrary. In that case, Hunt J, with whom Gleeson CJ and Samuels JA agreed, said (at 50): "The one situation in which it has certainly not been the practice to give a circumstantial evidence direction is where the only inference (or the only substantial inference) which has to be drawn is one as to the accused's state of mind. Where (as in the present case) there is no evidence by way of admission as to what an accused's state of mind was, that state of mind must always be established by way of inference - usually from what the accused has said or done; a person's actions often provide the most convincing evidence of the intention with which he does those actions. In such cases, that practice has existed because no circumstantial evidence direction is required by law." 67 I do not consider there was necessity referable to the particular features of this case for the directions sought by Mr Patch. Nor do I consider had such directions been given, that the appellant's prospects of acquittal would have been enhanced. The jury was repeatedly reminded of the burden and standard of proof imposed upon the Crown, and reminded of these matters towards the end of the summing up (SU 149-150). The jury was at this late point of the summing up reminded that it was for the Crown to prove the guilty state of mind of the accused beyond reasonable doubt and the jury was further reminded of what the Crown had to do to prove that guilty state of mind. The jury was reminded of what the Crown had to prove to establish recklessness, and was reminded that this had to be proved beyond reasonable doubt. 68 In my opinion, there is no substance in Ground 3.

GROUND 4: The trial judge's directions on the question of the complainant's capacity to consent were in error 69 The directions here complained of were earlier set out in para 20, but I repeat the relevant direction for the purposes of this ground, italicising that portion of the direction to which this ground is addressed: "As I have said, members of the jury, the capacity of [the complainant] to consent is in issue. The Crown asserts that she did not have the capacity to consent because of the disabilities from which she suffers. Now this is very important members of the jury; where capacity to consent is in issue what the Crown must prove, beyond reasonable doubt, is that [the complainant] did not have sufficient knowledge or understanding to comprehend that what was proposed to be done was the physical fact relied upon by the Crown in respect of each of the five charges. Or, that she did not have sufficient knowledge or understanding to comprehend that the act proposed in each case was one of a sexual nature as distinct from an act of a totally different character." 70 The direction given follows R v Morgan (1970) VR 337: see in particular the judgment of court at p 341. Unlike the present case, Morgan involved the alleged offence of rape. Whilst the directions may have been appropriate to such a charge, it was submitted that they were not appropriate here because the charge was a different one, namely assault with act of indecency. Such an offence is of a type that may involve an assault with no sexual content: see R v Beserick (1993) 30 NSWLR 510. The Court's attention was directed to the judgment of Hunt CJ at CL in that case and the definition of assault at 537 and the direction that it was thought was required in Beserick. 71 Mr Patch argued that it was not appropriate for the judge to direct the jury in such a way as to introduce an issue of the complainant's understanding that the act in each case was of a sexual nature. In short, Mr Patch submitted that set the bar too high for the issue of consent and the alternative instruction should not have been given. 72 I do not accept that submission. The assault and the element of indecency in respect of each of these counts upon which the appellant was convicted were inseparable. In my opinion, consistently with the manner in which the case was conducted, the judge was correct, having regard to the nature of the offences charged, to give Morgan-style instruction to the jury. 73 I do not consider Ground 4 has been established.

GROUND 5: (a) There was a miscarriage of justice because the verdicts of guilty cannot be supported having regard to the whole of the evidence (that is to say, the jury should have had a reasonable doubt about the guilt of the appellant). (b) There was a miscarriage of justice because the verdicts of the jury on the various counts were inconsistent. 74 I propose to deal first with Ground 5(b). 75 I earlier identified briefly the events relied upon by the Crown as supporting each of the five counts (see paras 7-10 hereof). 76 In my opinion, there is an obvious explanation for the jury to have acquitted the appellant on counts 1 and 2, and yet to have convicted him on the remaining counts. 77 At the beginning of the summing up (SU 1.5), the trial judge instructed the jury that it had to be established beyond reasonable doubt that the various offences were committed on the date alleged, 25 April 2001: "Members of the jury, I remind you at this stage that each charge alleges that on 25 April 2001 at Mascot a certain offence was committed. Now it is important, vital to bear in mind, that the Crown must prove that each of these offences was committed by the accused on that date. That is what the charge says. That is what the Crown has to prove." 78 Then (SU 14-15), the jury was further instructed: "Clearly the first matter the Crown must prove beyond reasonable doubt in respect of all these charges is that the alleged act took place… As I say, the accused denies completely that one of them did. As to another one, he says, well, something like that happened on another occasion. Well that is not good enough…" 79 When the complainant gave evidence she referred to only one occasion of misconduct and was unable to specify the date: "I remember it being on a Wednesday night" (T 300). The complainant went on to describe the five assaults with acts of indecency. In his evidence, the appellant admitted to intimate behaviour over a period, including stroking and kissing the complainant's breast. However, he specifically denied that this happened on the night of 25 April 2001 (T 534). According to the appellant, the intimacy on that night was limited to stroking the complainant's legs, kissing her stomach area, kissing her on the vulva outside her underclothing and finally the complainant touched the appellant on the penis. 80 It may well be that the jury was not satisfied beyond reasonable doubt that the appellant touched and kissed the complainant's breasts on 25 April 2001 because of the appellant's denial concerning that activity on that particular night. However, the appellant admitted that on 25 April 2001 he committed the acts the subject of counts 3 and 4, and further that there was touching of his penis that night. The issue on counts 3 and 4 was consent, and the issue on count 5 was whether or not it was the appellant who placed the complainant's hand on his penis. Hence the jury may have had no reasonable doubt that three of the activities occurred on 25 April, namely the activities the subject of counts 3, 4 and 5. 81 The jury was given instruction as to the necessity to consider each charge separately (SU 2.4): "And again, members of the jury, I remind you, as I said right at the outset two weeks ago, that it is necessary that you weigh up and consider the evidence in respect of each of these charges quite separately. In due course you will be required to return a separate verdict in relation to each of the charges and it does not follow as a matter of course that your verdicts would be the same. What I mean by that is that it does not follow that there would be either five verdicts of guilty or five verdicts of not guilty." 82 And then (SU 60.4): "…it is very important that you know what acts are alleged in respect of each of these charges. The Crown Prosecutor has told you and I have no doubt that some of you at least made a record of it. The reason for that of course, is as I say, it does not necessarily follow that your verdicts will be the same in relation to these matters. It is not necessary[il]y all guilty or all not guilty, so obviously it is very important that you know what act or acts are relied upon by the Crown in relation to every single charge." 83 The test provided for in s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency: see MFA v The Queen (2002) 213 CLR 606. It seems to me, against the background of the instruction given and with the features of the evidence referred to above in mind, it does not follow simply because the appellant was found not guilty on counts 1 and 2 that it was unreasonable for the jury to have found him guilty on counts 3, 4 and 5. 84 Accordingly I conclude that there is no substance in Ground 5(b). 85 Ground 5(a) requires the Court to consider all the evidence given at the trial, in order to determine whether, having regard to such evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: M v The Queen (1994) 181 CLR 487 at 493. 86 For the reasons stated, I do not consider the appellant's acquittal on counts 1 and 2 of itself renders the verdicts on counts 3, 4 and 5 unreasonable. There was a logical and reasonable explanation for the different verdicts. 87 In considering the evidence, this Court must recognise the advantage which the jury had, not enjoyed here, of seeing and hearing the witnesses give their evidence. There was no independent eye witness to any of the incidents, so that the major witnesses at the trial were the complainant and the appellant. The assessment that the jury made of these two witnesses, having had the opportunity of observing them, was of crucial significance. 88 I shall identify briefly the other witnesses who were called. Evidence of complaint was given by Mr Kennedy, an employee at the home where the appellant was employed. Ms Dunn had a managerial position with the caring institution and gave evidence as to her interview with the complainant on 29 April 2001. The complainant's foster mother gave background evidence concerning the complainant's mental health, and so did Ms Gifford, the social educator employed at the group home. Professor Nunn treated the complainant between 1995 and 1998 for her behavioural difficulties. That the complainant was suffering from Asperger's syndrome was recognised during that three year period. 89 Constable Toppenberg took a statement from the complainant over two days in May 2001 before interviewing the appellant on 24 May 2001. The record of the latter interview went into evidence. 90 The appellant had no previous criminal history and evidence of his prior good character was introduced in the appellant's case. 91 In 1999 the appellant was having difficulty studying for a psychology degree and he consulted a psychiatrist, Dr Hook. Dr Hook diagnosed the appellant as obsessive and compulsive and also as being depressed. Dr Hook saw the appellant a further four times from December 2002 onwards. 92 Mr Patch submitted that the complainant's mental condition, including her Asperger's syndrome and her schizophrenia, was a feature that affected the reliability of her evidence. It was certainly a feature to be carefully considered by the jury, and it was important for the jury to be given appropriate warning. However, such warning was given (SU 24-25). The judge returned to the issue and gave further warning (SU 53-54). No issue is taken with the terms of the warnings given and it is unnecessary for me to record here what the jury was told. Plainly, the instruction was correct and sufficient. The jury was also adequately instructed as to the dependence in the prosecution case upon the acceptance of the evidence of the complainant. 93 Turning to the appellant, Mr Patch submitted that there was the evidence of good character before the jury which ought to have influenced the jury in the appellant's favour. The jury was given appropriate instruction about the possible significance of the evidence of good character (SU 93). However, the jury might reasonably have found that evidence of little assistance in the circumstances of this case, where the sexual activity admitted by the appellant in his relationship with the complainant was plainly improper. Indeed, the appellant admitted in cross examination that he knew that what he was doing was wrong. 94 In relation to the issue of consent, Mr Patch submitted that the evidence of the complainant's asserted lack of capacity to consent was very weak and that there was direct evidence that the complainant had the requisite capacity. Mr Kennedy gave evidence (T 204), being referred to the content of a statement he had made to the police, that the complainant understood the difference between acceptable and unacceptable social behaviour, including sexual behaviour. 95 The complainant's foster mother gave evidence (T 284-5) that she had made efforts as any parent would to give the complainant a knowledge of sexual relations. This witness also gave evidence about the educational programmes that the complainant had undertaken, including sexual education. 96 The complainant said that she had been taught about sexual abuse at school and said (T 360): "Well, what I know, your vulva and your breasts the penis or whatever, they're your private parts and no-one should touch them unless you want them to. That is what I've learned." 97 Dr Nunn was asked the following question (T 258): "Q. What's your opinion, was [the complainant] capable of understanding that those were acts of a sexual nature [the acts referred to being the acts complained of on 25 April 2001]? A. The answer to that is a qualified yes. In the sense that if she has had the education that most of the young people with disabilities have, she will have been taught that people touching you there is a sexual act in the sense of that it is sexually inappropriate and she will have been taught that something bad might happen. Even if she does not understand the social and emotional significance of the actual acts, she will understand that this is - she will label the word inappropriate, but she may not know what the person is intending by that act or what consequences will arise from that act." 98 The test for capacity in the instruction given to the jury was stated in accordance with the decision in R v Morgan (see paras 70-71 above). There was a case to go to the jury on the issue of the complainant's capacity. However, although what was stated to be required to establish incapacity was relatively undemanding, I consider on the evidence that it is unlikely the jury did accept that she did not have the capacity to consent. Indeed, the Crown conceded as much in the course of the hearing of this appeal. 99 Of course, this leaves the issue as to whether the Crown established that the complainant did not consent in fact, and as to this Mr Patch submitted that the jury ought at least to have entertained a reasonable doubt, particularly since the complainant gave no evidence as to counts 3 and 4 that she did not consent. Nor did the complainant tell Mr Kennedy, to whom she first spoke about what had occurred the previous night, that the appellant had acted against her will. Mr Patch also drew attention to the episode in the staff room where the complainant entered the staff bed with the appellant. As to this, Mr Patch referred to what the complainant told Ms Dunn, according to Ms Dunn's notes made on 29 April 2001: "I fell for it. I knew I shouldn't have said yes, but I did." 100 Mr Patch submitted that although none of the assaults was alleged to have occurred in that bed, the complainant would hardly have entered the bed willingly if she had earlier been assaulted. 101 These submissions warrant close attention. 102 I referred earlier to the sequence of events concerning the offences charged (see paras 13-16 above). Counts 1-4 related to what occurred on the couch before the complainant went to the staff room and into the bed there. The complainant went from the staff room to her bedroom and the appellant followed her there. It was in the complainant's bedroom that the contact with the appellant's penis occurred. 103 In relation to that contact, the complainant's evidence was that the appellant grabbed her hand and made her touch his penis. She said she tried to pull away but that the appellant would not let her (T 313). The complainant said Mr Kennedy was the first person she told and later Ms Gifford and Ms Dunn. She said she found it quite difficult to explain what had happened to her without crying, because she was nervous and did not know how to put into words what had happened (T 313). 104 When the complainant was interviewed by Ms Dunn and Ms Gifford on 29 April 2001 she was asked did the appellant ever touch her with his penis, and her response, expressed emphatically, was "No, I didn't want to touch that" (T 180). 105 If the complainant's evidence as to the circumstances of contact with the appellant's penis was accepted, it established absence of consent to that contact, conveyed by her resistance to the movement of her hand. 106 Under cross examination it was put to the complainant that she stretched her fingers out and touched the appellant's penis, to which her response was: "I didn't touch it of my own accord, he made me do it" (T 350-351). 107 Consistently with that cross examination, the appellant gave an account that he went into the complainant's bedroom and left temporarily whilst she was undressing. He then returned and sat by her side. The complainant complained she was not feeling very well, he offered to sit with her, and then went away to change into his pyjamas. On his return he sat on the bed next to her and held her hand on his leg, at a point "close to where your leg folds with your stomach when you are sitting down" (T 552). He denied grabbing her hand to put it on his penis. Rather, his version was that the complainant stretched out a hand and that the tips of her fingers touched the base of his penis (T 551-552). He said the contact surprised him "because she had already told me that she didn't want to touch my penis in the other room…on the lounge. She had already told me that 'Look, I don't want to do that.'" 108 The appellant had given evidence that when earlier he had been on the couch with the complainant she asked the complainant if she wanted to touch his penis, and said (T 199): "I started to pull her hand towards my penis… She pulled her hand away and said 'No, I don't want to do that.' So I said 'Okay, we won't.'" 109 My assessment of the evidence concerning count 5 is that the jury was entitled to reject the appellant's account of the incident as highly implausible. That account called upon the jury to consider, as a reasonable possibility at least, that the complainant, having already rejected an approach for such contact that night, at a time later on after she had expressed herself as feeling unwell, would have deliberately stretched out her hand to make the contact. It is not surprising that the jury found the appellant's version unacceptable. 110 I return to counts 3 and 4. 111 The complainant gave evidence that the appellant rubbed and kissed her vulva outside her underwear. 112 The complainant gave no evidence that she resisted the appellant when he rubbed and kissed her underclothing. The jury was invited to conclude that there was submission but no consent. The complainant was asked in her evidence in chief (T 305): "Q. Did you give permission to Ytzak [the name by which the appellant was known] to do the things that you have described on the couch? A. No, I didn't." 113 Objection was taken to that question and in the exchange that followed the judge asked whether verbal permission was what was meant and suggested that that should be made plain to the witness. However the question was objected to and the answer was not struck out. 114 Later in cross examination (T 370), the complainant was asked: "Q. Ytzak's told me that he never made you do anything that night. He only ever asked you. Do you understand that that is what he told me? What do you say about that? A. I say I don't know if he made me do it or not. He - I'm all blank." 115 For his part, the appellant gave evidence that he began stroking the complainant's legs with her express permission, although there was not much conversation (T 538). The appellant said the complainant gave him permission to kiss her legs. Having done so, he kissed her thighs and then her vulva outside her underpants. Then he stood up to kiss her breasts and the complainant said "Don't do that". The appellant says he then asked "Is it okay to keep kissing you like I was before?", to which the complainant responded 'Yeah, that's fine" (T 543). 116 So it is that the appellant contends that he sought and obtained permission to kiss the complainant's vulva after the complainant refused to let him kiss her breasts. It seems to me that a jury was entitled to regard that as being a highly unlikely chain of events. 117 The appellant was in a position of influence and authority over the complainant, a feature to be considered when the jury was addressing the distinction between submission and consent. The jury had direct evidence that the complainant did not consent to having her hand placed on the penis of the appellant, and also direct evidence that she would not permit the appellant to kiss her breasts. Moreover, there was the following evidence given by the appellant that bears upon her attitude to what the appellant did:

(a) when the appellant took the complainant to the staffroom, the complainant's evidence was "He made [her] get in the bed with him". The complainant said that she was "too scared to disobey" (T 310);

(b) after the events concerning count 5, the complainant said: "Well, eventually I managed to get away and I remember going to bed, lying in the dark and thinking how awful it was that he did those things to me" (T 313)'

(c) then there was her evidence (at T 300): "Q. Does Itzak still work at Walker Avenue? A. He doesn't. After what he did to me he's not allowed to come back. Q. What do you mean by 'what he did to me', what do you mean by those words, describe what you mean? A. I meant how he was sexually harassing me. Q. What do you think the words 'sexually harassing' mean? A. It means when a man touches a woman inappropriately, like, for example what he did to me, he was rubbing my breast and my vulva and he was kissing my breasts and my vulva as well."

(d) later in her evidence, referring to the events on 25 April 2001, the complainant said: "It was night time when he started assaulting me" (T 302);

(e) at T 342 the complainant was asked: "Q. He hadn't done anything nasty to you that night had he? A. Well till the assault happened, no… Q. So were you afraid of Ytzak? A. I wasn't exactly scared of him but I was scared of what he was doing to me."

(f) at T 36-361: "Q. Did you really feel scared that night with Ytzak or are you just saying you should have felt scared? What are you saying? Did you really feel scared or just do you think you should have felt scared? A. I was scared… Q. Emma Toppenberg asked you this question, 'You have told me that you felt scared of Ytzak. How were you scared of him?', and you gave this answer, 'Oh well, I am worried he might do it again, although I don't see he can. He is not allowed to come back to Walker Avenue again'. A. That's true, sir. So that means what I have been telling you about, the time he was harassing me was the last time he come to our house." 118 Plainly the jury accepted the evidence of the complainant as to count 5, as it was entitled to do. It is equally plain that the jury rejected the appellant's version that count 5 related to an activity in which the complainant was a consenting party, and, indeed, in which she was the active participant. Again this rejection was a conclusion the jury was entitled to reach. Having done so, it was not a giant step for the jury to reject the appellant's assertion that he asked for and obtained the complainant's permission for the activities to which count 3 and count 4 relate, albeit after such activities had started but were interrupted. Particularly is this so, when the appellant alleged permission to resume this more intimate contact was given immediately after permission was refused for him to kiss the complainant's breasts. (I record the evidence in point later at para 128). 119 It seems to me, having reflected on the evidence, that it was open to the jury to find that the complainant did not consent to the acts the subject of counts 3 and 4, and that she actively resisted the appellant's conduct relating to count 5. Moreover, I consider that it was open to the jury to find beyond reasonable doubt that the complainant conveyed to the appellant the absence of consent in relation to count 5 by her attempted resistance. As to counts 3 and 4, it seems to me that it was open to the jury to conclude similarly that the respondent did what he did, reckless as to whether the complainant was consenting or not. 120 In my view, Ground 5(a) has not been established.

GROUND 6: The jury should not have been directed at all on the question of recklessness

GROUND 7: The jury should not have been directed at all on the question of inadvertent recklessness 121 It is convenient to deal with these two grounds together. 122 Mr Patch submitted that there was nothing in what the appellant said to the police or in his evidence which laid the basis for the instruction given to the jury in recklessness (as to which see para 44 above). The appellant's case was that he always consciously adverted to the question of consent and that he followed the complainant's wishes. 123 That may have been the appellant's case, but the jury did not have to accept what the appellant said. I will not repeat what I have written when considering Ground 5(a). 124 The jury was correctly told that not only must the Crown prove the act being considered was done without the consent of the complainant, but also that the appellant knew that the complainant was not consenting or that he was reckless as to whether she was consenting or not. 125 In R v Henning (supra), Gleeson CJ and Campbell and Mathews JJ, said in their joint judgment (at p 32): "…recklessness will become a relevant issue…when there is a possibility of ambiguity in the signals of consent or non-consent emanating from the complainant or arising from the circumstances." 126 Since the complainant did not, in the prosecution case express verbally her refusal of permission in relation to the specific acts to which counts 3 and 4 related, this was a situation in which the need for directions on recklessness arose. There was the additional feature of the mental state of the complainant which bore upon the desirability of the instruction that was given. 127 There was the further feature to which the Crown has drawn attention that the appellant admitted that when he first kissed the complainant on the vulva, he did so without having first sought permission. Moreover, at no time did he ask for permission to touch the complainant in that area. 128 In point, the appellant was asked the following questions in cross examination (T 619): "Q. …you didn't make any inquiry of her before you touched her vulva? A. The first time - okay on 25th, the development of events is as I have told them, in other words, I asked if I could kiss her legs, she said fine. Then after I had kissed her vulva for a while and stood up to kiss her breast and she told me not to, I then asked if it would be okay to continue the way I was before, kissing her vulva, and then she said yes. Q. But you didn't ask her before you kissed her vulva, can I kiss your vulva? A. The first time no, the second time yes." 129 In the circumstances above identified, the trial judge was correct to instruct the jury on recklessness, and Grounds 6 and 7 fail. 130 For the above reasons, I am of the opinion that this appeal should be dismissed. 131 HULME J: I agree with the order proposed by Justice Studdert and with his Honour's reasons. I would add only this.

132 There is a deal to be said for the view that in summings up in sexual assault cases judges should either avoid, or at least be very careful in, referring to consent being "freely and voluntarily given".

133 "Freely" is defined in "The New Shorter Oxford English Dictionary" as, inter alia:- "1. Of one's own accord, spontaneously; without constraint or reluctance; unreservedly, without stipulation; readily, willingly." or "2. Without restraint or reserve with regard to speech; unreservedly, frankly, openly, plainly." "4. Without stint; plentifully, abundantly; generously, liberally." 134 "Voluntary" is defined as, inter alia:- "Of a feeling, sentiment, etc: arising or developing in the mind without external constraint; purely spontaneous in origin or character" and "of an action: performed or done of one's own free will, impulse or choice; not constrained, prompted or suggested by another."

135 It is clear law that, as a defence to a charge of sexual assault, consent need not accord with many of these meanings. Consent given reluctantly or only after a deal of persuasion is still, as a matter of law, consent.

136 In this case as Studdert J has pointed out, although using the words "consent freely and voluntarily given", the trial judge did not leave the topic with that simple expression but went on to explain the concept of consent in terms which were sufficient to cure any ambiguity in the expression. **********

17/03/2005 - Incorrect file number on cover sheet. - Paragraph(s) Cover sheet.

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