99 If the combined force of the common law and statute is to require carefully balanced directions to the jury in some of the cases in which consent is in issue, this Court should assist trial judges to find that balance. It is to this matter that I now turn.
100 Appropriate directions would take as their starting point a proposition that of course remains fundamental. Consent (or, rather, the lack of it) is an element of the crime of rape. Accordingly, the jury must be directed that they could not return a verdict of guilty unless they were satisfied beyond reasonable doubt that the complainant did not consent to the particular act of sexual intercourse upon which the charge under consideration was based. If the jury were not so satisfied, then other issues such as the applicant's belief in the complainant's attitude would become irrelevant. The element of consent being logically anterior to the issue of the applicant's belief in consent, it was to consent that the jury should first turn its attention.
101 It was also the trial judge's duty to tell the jury that consent means free agreement; and, in deciding whether they were satisfied to the requisite standard that the complainant had not given her free agreement to the particular act of sexual intercourse with which they were then concerned, the jury must bear in mind that a person does not freely agree to such an act if she is so affected by alcohol and marijuana as to be incapable of freely agreeing. In evaluating the combined effect of the two drugs, the jury should, moreover, have been told that they were entitled to consider the total context. A 15 year old and physically very small female ("tiny" was the description with which the applicant agreed)[54], under the influence of those drugs and in the presence of a fully grown and physically imposing 25 year old male, might (it was a matter for the jury) have her capacity for free agreement reduced by those factors.
102 Other evidence was relevant to the question of consent. The jury should have been directed that (subject to what is said at paragraph [110] below) they were required to have regard to it all - although it was of course for them to decide how much of it, if any, they accepted. But, because they were, or at least may have been, required to have regard to it all, the trial judge was in turn required to give them a fair summary of the salient parts of it. The starting point was, on the one hand, the evidence given by the complainant in the trial and, on the other, the evidence constituted by the applicant's answers to questions put to him by the police during the course of his police interview.
103 The complainant repeatedly - and it is, I think, fair to say, forcefully - asserted that she had clearly evinced her lack of consent to intercourse. She also gave evidence of her cry for help when seeing K.R. in the car park after the relevant incidents, and of her complaint, made to K.R. immediately upon her return to the Dandenong premises, that she had been raped. In addition, she claimed to have been injured during the episode, to the extent that an earring and a nose ring had been torn off, with bloody consequences. The jury should have been reminded, albeit briefly, of these matters.
104 On the other hand, none of this called for a direction pursuant to s.37. This is so because it does not give rise to any of the factual circumstances with which that section is concerned. The defence, however, brings the section into play. On the applicant's account, he "wanted to kiss and stuff", and he suggested that they sit down; she objected that there was "too much light". They moved "over there". After that, they "just started kissing [and] [f]rom then on one thing led to another and that was it."[55] To the extent that the complainant evinced her consent to an act that otherwise seems - and this is the applicant's version - to be initiated by him, she did so by actively engaging in mutual kissing, by perhaps (his account is so vague as to warrant the qualification) suggesting that they lie down, and by assisting him to re-arrange her clothes.
105 All this warranted a reference, in any directions given to the jury, to the principle - dictated by the law - that if they found that the complainant did not say or do anything to indicate free agreement, then they would be entitled to infer that the act took place without that free agreement. Moreover, in the absence of indicia to the contrary, that inference would be the inference that a jury would normally draw; but, when considering whether such indicia existed, they should take into account the applicant's assertion to the police that the complainant went willingly with him to a Coles store after their return to Dandenong.
106 Of course, if the jury had no reasonable doubt about the truthfulness of the complainant's evidence on the question of consent, then it would be unnecessary to consider the implications of her failing to say or do anything to indicate free agreement. Equally, the jury in that circumstance would not need to ask whether, because she did not protest or physically resist or sustain physical injury, she was to be regarded as having given her consent. These questions would not need to be considered because - on the hypothesis that the complainant's evidence had convinced the jury to the point that they had no reasonable doubt that it was true - she did protest, she did resist, and she did sustain physical injury.
107 As in Yusuf's case, so in this: the suggestion that kissing was a prelude to what happened next raises an important issue in relation to s.37(1)(b)(iii). It goes both to the fact of consent and to the applicant's belief (or lack of belief) that the complainant was freely agreeing to sexual intercourse. The complainant maintained that "he tried kissing me and I pushed him away, and I told him that he could have his necklace back if all he wants is a fuck." [56] She would have to concede that, on that evidence, she anticipated that the kissing episode was, in his mind, but a prelude to sexual intercourse. And of course kissing often is part of the foreplay that precedes such intercourse. That is how the applicant appears to have seen it on this occasion. But even were this so, that in itself says nothing about either her consent or his belief that she was consenting.
108 It is for the jury to decide whether the complainant joined in at this point and, if she did, whether by her participation she evidenced her consent to what followed. But s.37(1)(b)(iii) required the judge to direct the jury that the complainant was not to be regarded as having freely agreed to sexual intercourse just because (if this is what the jury find) she freely agreed to being kissed by the applicant, and kissed him in return. Everything depends on their judgment of the circumstances. I repeat that which I said at paragraph [89] above: it is unacceptable that the jury be given a direction based on the premise that a male is entitled (a) to assume that the participating female is willing to move beyond kissing, and (b) to act upon that assumption, unless the female gives some overt indication to the contrary.
109 In his charge to the jury in this case, his Honour avoided this trap by saying nothing about the subject at all. In other words, he failed to give the jury either the right or the wrong direction about the significance of the kissing episode as recounted by the applicant in his record of interview. But that in itself was a mistake, because s.37 required that the right direction be given.
110 In the circumstances of this case, the absence of free agreement would not be sufficiently proved if the jury, after considering the evidence of the complainant, had a reasonable doubt about whether she freely agreed to have sexual intercourse with the applicant. If her evidence did not convince on this point, no other evidence could fill the gap. But if the jury, having carefully considered what she had to say, were not prepared to acquit at that stage, they would then be obliged to consider all the evidence. The question then before them would be whether a reasonable doubt had been created by one or a combination of (a) the prior inconsistent statements; (b) the evidence about the trip to Coles; (c) the discrepancies between K.R.'s and the complainant's version of what happened in the car park and on their return to Dandenong; and, generally, (d) the applicant's story as told to the police. If that account caused the jury to have a reasonable doubt about the prosecution's contention that the complainant did not freely agree to sexual intercourse with the applicant, then they must acquit. But they should not have that doubt just because they might think that the complainant freely allowed the applicant to kiss her, or joined the applicant as each kissed the other, or did not resist when he removed or re-arranged her clothes.
111 The jury were directed by his Honour that, even if they were satisfied beyond reasonable doubt that the complainant did not consent, the applicant was not guilty unless they also found that he knew that she did not consent or might not be consenting. The judge should also have directed them that, if they had no reasonable doubt about her evidence on the point, then likewise there could be no doubt that the applicant was aware of her lack of free agreement. But they might not be so satisfied. The jury should have been (and were) directed that, when considering whether the prosecution had established beyond reasonable doubt that the applicant did not believe that the complainant freely agreed to sexual intercourse with him, they were to take into account whether such belief was, in all the circumstances, reasonable.
112 I now turn to the (proposed) ground 5. The applicant submits that the trial judge failed to give any direction to the jury about the effect that the complainant's consumption of alcohol and marijuana may have had on the reliability of her evidence. And it is true that he did not. Neither side called any experts to speak on the subject, so the jury if they considered the matter at all must of necessity have done so by drawing on whatever experience they or individual jurors may have had. The judge, of course, could not by any direction of his fill the gap left by the absence of expert evidence. The best he could have done was to remind the jury of the evidence about her consumption, and of her own assessment of its effect on her, and warn them that, as that is all they have, it would be unsafe to convict the applicant on the complainant's evidence unless having very carefully considered that evidence they were satisfied that it was accurate.
113 In my opinion, a direction of that kind should have been given. The alternative, which his Honour adopted, exposed the jury to the danger of speculation. The direction should nevertheless have included more than its warning about mere speculation concerning the complainant's ability to recall. It should also have included a reminder that the complainant's ingestion of drugs may have brought her within that class of participants in sexual adventures who, because they are at the relevant time deeply under the influence of drugs, are incapable of freely agreeing to their participation in those adventures. And although there is no necessary and direct correlation between the two, the more the jury are tempted to find that the complainant's memory was unreliable, the more they would doubtless also incline to the conclusion that she did not freely consent. If she did not freely consent, then the jury must ask whether the applicant believed that she did. In answering that question, they would be bound to examine the evidence of her conduct in order to ascertain whether her behaviour ought to have alerted the applicant to the possibility that she might not be consenting. Of course, the judge would be required to remind them that the applicant does not bear any onus of proof; and so while he may create a doubt in the jury's mind about the complainant's capacity accurately to recall relevant events, he does not have to prove her incapacity. The Crown, on the other hand, must prove beyond reasonable doubt not only that the complainant did not consent, but that the applicant knew it.
114 For these reasons it seems to me that the applicant is entitled to a retrial; but one in which the jury are charged in accordance with all the relevant law. They must not be charged merely on the law upon which the applicant relied to sustain the appeal.
115 I would grant the application to add proposed grounds 4 and 5, and the application for leave to appeal. I would treat the appeal as having been heard instanter and allowed. I would also, therefore, quash the applicant's conviction and order a retrial.