R v PAX [2000] QCA 136

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: The appellant was convicted in the District Court on three counts of having raped his stepdaughter. The first offence occurred between April and July 1983 when the complainant was about 12 ½ years old. The second occurred in December 1988 when she was 18. The third occurred in March or April 1989 also when she was 18.

[2] With respect to the first offence, the complainant gave evidence that the appellant had sexual intercourse with her notwithstanding her telling him to "stop", and saying "don't do that"; he said: "If you have sex with me I will stop touching you", to which she responded, "No". The appellant gave evidence at the trial denying that this offence occurred. The jury were properly instructed. Mr Hamlyn Harris, who appeared for the appellant, rightly conceded that there was no tenable ground of appeal in respect of the conviction on the first count. The appeal against that conviction should be dismissed.

[3] The challenge to the convictions on the second and third counts concerns whether the learned trial judge erred in not directing the jury in relation to s 24 of the Criminal Code, and in directing the jury that to prove rape, actual lack of consent need not, in addition, have been communicated to the accused by word or conduct.

[4] The complainant's evidence on these two counts was that although she did not consent to the appellant's having sexual intercourse with her, she did not communicate that lack of consent to him. Neither did she resist him. Her explanation for that was that she was in fear of him because of violence perpetrated in the past by the appellant upon her, her mother and her brother. The appellant gave evidence that sexual intercourse did occur on these occasions, but that it was consensual. It is convenient to deal first with the second ground. It is expressed in these terms:

"The learned Trial Judge erred in law in directing the jury that consent in a rape charge is subjective and does not have to be communicated by any form of act or words, in that this could have given the jury the wrong impression that it made no difference whether the accused knew of the non-consent or not."

"Consent refers to a subjective state of mind, that is, the complainant's state of mind at the time of penetration. It is not necessary for the Crown to establish that at the time she indicated her lack of consent by any form of act or words."

Counsel for the appellant submitted that the concept of consent "involves both a subjective state of mind and the communication of that state of mind. In other words, although it is subjective, it involves a notion that consent is given and is not simply something that is privately felt."

[5] This point has previously been determined against the appellant's contention.

[6] In R v IA Shaw [1995] QCA 45; [1996] 1 Qd R 641, this Court held, per Davies and McPherson JJA (page 646) that:

"Under s 347 consent refers to a subjective state of mind on the part of the complainant at the time when penetration takes place. It is not in law necessary that the complainant should manifest her dissent ..."

See also P [1998] QCA 402; (1998) 104 A Crim R 220, 223.

[7] The learned judge's summing up was in this respect unexceptionable, and the subject ground of appeal should fail.

[8] The first ground of appeal is expressed in these terms:

"The learned Trial Judge erred in law in failing to direct the jury as to section 24 of the Criminal Code in respect of the second and third counts on the indictment."

Defence counsel at the trial requested the judge to direct the jury in relation to s 24. The judge declined because he considered that the section had not been "fairly raised". That resulted from the appellant's persistent claims that the complainant consented to the acts of sexual intercourse. That claim of consent would be inconsistent with any contrary possibility, such as the existence of a mistaken belief as to consent where the complainant was in fact dissenting. The judge accordingly held that s 24 had not been raised. One is immediately however struck by defence counsel's submission to the judge: "If he was making a mistake then he might be making a mistake now (at the trial)."

[9] The possible applicability of s 24 in a situation like this, where although dissenting the complainant has not in any way communicated that lack of agreement, was confirmed in Shaw, supra (per Davies and McPherson JJA):

"A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent; or it may furnish some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting to sexual intercourse, and so provide a basis for exemption from criminal responsibility under s 24 of the Criminal Code."

[10] The accused's mistaken belief under s 24 must have been both honestly and reasonably held. The appellant gave evidence that the acts of intercourse were consensual. That raised the element of his having honestly held that view. One would think that the reasonableness of the view should remain then an issue for consideration by the jury. The basis on which the learned judge concluded that the question had not been raised was not supportable.

[11] Yet the Crown submits that another matter justified the judge's ruling. The complainant explained her failure to manifest her lack of consent by reference to antecedent fear engendered in her by the appellant's violence over a long period. The judge instructed the jury in these terms:

"If you are not satisfied beyond reasonable doubt that there was that history of violence, and ongoing violence, and that it produced that fear that the complainant claimed it did, then you would have to acquit the accused on each count."

Having convicted the appellant, the jury must be taken to have accepted the complainant's account of that history of violence. That leads to the Crown's contention on appeal:

"If the circumstances were as described by the complainant it is impossible to see how anyone objectively could reasonably have believed that she was consenting to sexual intercourse, or that if she did consent it wasn't as a result of her state of fear. Thus section 24 would have no proper operation."

[12] It is necessary to examine the complainant's evidence in order to determine whether that submission can be sustained. The thrust of her evidence may be gathered from the following extracts:

"He was a very violent man. He often would get drunk and come home and he would beat my mother up or he'd hit us, my brother or myself, frequently ... I was four when he got my mother but from then on any time ... she'd cop a beating ... because of the way he was and the violence I grew up being scared of PAX ... I grew up being frightened of him. We all did. He would just snap so I struggled at first but ... after a while I gave up because I thought it was pointless against him and bigger than me, the things he said, like, "nobody will believe you", and I was scared for personal safety of myself and my mother as well ... I was frightened ... he'd get drunk and I remember one time he went crazy with an axe and ... tried to smash up the house ... we had been shot at - I personally have been shot at by him. I have been chased with an axe. I've had knives held at my throat ... I was petrified not only for myself but also for my mother."

When cross-examined, the appellant rejected the suggestion that he was "an extremely violent man". He denied other allegations of violence.

[13] But the jury should be taken to have accepted the complainant's account about these things. That account generally did not include matters of detail, such as dates and time periods, and there appears to have been no description of particular violent episodes proximate in time to the periods covered by counts 2 and 3. There was therefore in theory room for argument that the Crown had not excluded s 24 beyond reasonable doubt, in that the Crown had not established that any belief in the appellant that the complainant was consenting would have been unreasonable, in that the only explanation for her apparent acquiescence was her having been intimidated into silence by the violence to which he had, up to recent times, subjected her.

[14] The jury should have been instructed with respect to s 24, and regrettably there must therefore be a new trial on counts 2 and 3, regrettable particularly because it will presumably be necessary for the complainant to give her evidence again.

[15] The reference above to the absence of particular evidence of violence at times proximate to those covered by the counts should not be taken as suggesting that there need necessarily be that temporal proximity. Section 347 refers to "consent ... obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm ..." Mr Hamlyn Harris for the appellant submitted "that the reference to "fear" in the context in which it appears, suggests that to satisfy the definition fear must be employed by the accused to obtain consent at or close to the time at which consent is obtained and intercourse occurs". He cited no authority for such a proposition. It gains no support from the language of s 347. "Fear of bodily harm", the relevant feature here, is a state of mind which may well have been induced by conduct on the part of an accused materially separated in time from the act of intercourse.

P, (supra) incidentally appears to have proceeded on that assumption.

[16] The appeal against conviction on count 1 should be dismissed. The appeals against the convictions on counts 2 and 3 should be allowed, the convictions and sentences set aside, with orders for new trials upon the charges in those counts. The notices to the Crown witnesses should be extended accordingly.