R v Shaw [1995] QCA 45

When Sir Samuel Griffith drafted the Criminal Code, it was established that rape involved sexual penetration without consent; in R. v. Bourke [1915] ArgusLawRp 43; (1915) V.L.R. 289, Hood J. related the requirement of absence of consent to the Statute 13 Edw. 1., c 34: "If a man from henceforth do ravish a woman married maid or other where she did not consent neither before nor after he shall have judgment of life and of member". See also R. v. Flattery (1877) 2 Q.B.D. 410, C.C.R. per Mellor J. at p. 413. However, the law concerning what amounted to consent, or an absence of consent, was not finally settled.

Thus, for example, when the Code was enacted, it was thought that, by marriage, a wife gave irrevocable consent to sexual intercourse with her husband (R. v. Clarence (1888) 22 Q.B.D. 23). Later cases qualified that proposition by adding "only whilst ordinary relations subsist between the parties" (R. v. McMinn [1982] VicRp 5; (1982) V.R. 53, 57). See also R. v. Clarke (1948) 2 All E.R. 48; (1949) 33 Cr.App.R. 216; R. v. Miller (1954) 2 Q.B. 282; R. v. O'Brien (1974) 3 All E.R. 663; R. v. Steele (1976) 65 Cr.App.R. 22. Now it is no longer the common law that such a consent is implied by marriage: R. v. L. [1991] HCA 48; (1991) 174 C.L.R. 379.

Capacity to consent raised different issues. Towards the end of the 19th century, the accepted view with respect to women of unsound mind was that of Willes J. in R. v. Fletcher (1959) Bell C.C. 63, 70, that if a woman of unsound mind is in such a state of idiocy as to be incapable of expressing either consent or dissent, and the prisoner has connection with her, he is guilty of rape, but otherwise the consent of such a woman, induced by mere animal instinct, is sufficient to prevent the act from constituting a rape. See also R. v. Fletcher (1866) L.R. 1 C.C.R. 39; R. v. Barratt (1873) L.R. 2 C.C.R. 81; cf. R. v. Lambert [1919] ArgusLawRp 8; (1919) V.L.R. 205, 212. At p. 213 of the latter decision, there is a reference to R. v. Lock (1872) 2 C.C.R. 10 in terms which seem to suggest that consent could also be given by "a child of tender years", although at p. 212, and again at the end of Cussen J.'s judgment at p. 214, he says that capacity to consent falls to be determined by all the facts of the particular case. The effect of intoxication on capacity was dealt with in R. v. Camplin [1845] EngR 212; (1845) 1 Cox C.C. 220, C.C.R. (in which the female was a 13 year old girl), and it was held that a sleeping woman could not consent in R. v. Mayers (1872) 12 Cox C.C. 311; R. v. Young (1878) 14 Cox C.C. 114, C.C.R.

The effect of fraud and mistake on the existence or absence of consent was also a subject of considerable discussion, as in manifest from the decision of the High Court in Papadimitropolous v. R. [1957] HCA 74; (1957) 98 C.L.R. 249, at pp. 255 ff. At p. 255, the Court in a joint judgment noted that there had "been some judicial resistance to the idea that an actual consent of sexual intercourse can be no consent because it is vitiated by fraud or mistake", and then proceeded to discuss a line of authority, commencing with R. v. Jackson [1822] EngR 90; (1822) Russ. & Ry 487 [168 E.R. 911], before concluding that consent to the physical act of penetration, knowing its nature and the identity of the man, is not vitiated by the causes which induced the consent; hence, where a woman consented to sexual intercourse under the belief, fraudulently induced by the man, that she was married to him, the man was not guilty of rape.

It is unnecessary for present purposes to consider that case further, but it is convenient, before turning to the relationship between duress and consent, to note the following passage from p. 255:

"The modern history of the crime of rape shows a tendency to extend the application of the constituent elements of the offence. The 'violenter et felonice rapuit' of the old Latin indictment is now satisfied although there be no use of force: R. v. Bourke [(1915) V.L.R. 289]. The 'contra voluntatem suam' requires only a negative absence of consent; (as to the need of the man's being aware of the absence of consent, see R. v. Lambert [(1919) V.L.R. 205, at p. 213]. The 'violenter et felonice carnaliter cognovit' is established if there has been some degree of penetration although slight, and no more force has been used than is required to effect it: R. v. Bourke; R. v. Burles [(1947) V.L.R. 392]."

At about the time of the enactment of the Code, it was possible to find statements distinguishing between consent and submission, e.g., R. v. Wollaston (1872) 12 Cox C.C. 180, 182 per Kelly C.B. (a case involving males and a charge of indecent assault); cf. Flattery at p. 413 per Mellor J. And there were statements to the effect that consent "given through fear of death, or serious injury, or duress ... is considered by the law as no consent at all" (Thwaites - Guide to Criminal Law (1896) p. 32); "if ... submission (as distinct from ... consent) has been obtained by threats of extreme bodily harm, the prisoner can be convicted" (Shirley - The Criminal Law (p. 52); and "[a] consent obtained by menaces of death or duress is in law no consent" (1 Halsbury's Laws of England, Vol. 9, p. 612, para. 1238). Only Halsbury gave authority, referring to 1 Hale, P.C. 631; 1 Hawk. P.C., c. 16, s. 7; R. v. Jones (1861), 4 L.T.

Jones involved a father's rape of his 14 year old daughter; the report (p. 154) concerns Channel B.'s direction to the jury, and, so far as presently material is as follows:

"His Lordship then continued:- If in this case it is made out to your satisfaction that a kind of reign of terror was set up in this family, and in consequence of that terror and dread the girl allowed the connection to take place without resistance, then I am of opinion you may convict. It is possible she may have been a consenting party, and not influenced by dread. This is a question for you. She says the same thing had been done upon previous occasions, and her father had told her he would throttle her if she told her mother, and that is why she did not tell. She says she begged him not to do it, and to be quiet and leave her alone. This in ordinary cases would be quite insufficient. But in this case, if you think she remained passive under the influence of that dread and reign of terror which I have mentioned, and that is clearly made out, you may find the prisoner guilty."

See also Bourke at pp. 292-293 and 295-296, and Burles at pp. 394-395, 406-407.

As was no doubt intended, the Code simplified the position in Queensland by obliterating the need to establish lack of consent by reference to vitiating factors, instead effectively making it immaterial whether or not there was technically consent; if any consent to sexual penetration which had occurred was "obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm ...", it was as much rape as if there had been no consent: s. 347.

That being so, I can identify no reason why, if the circumstances indicate sexual intercourse consequent on "threats or intimidation of any kind", the jury should ordinarily be directed to decide first whether the complainant consented and then, if she did, whether her consent was obtained by threats or intimidation; it is sufficient for the jury to decide that, if she did consent, that was how her consent was obtained.

There may be circumstances in which the jury must be more elaborately directed, but, if there are, this was not such a case. The jury's acceptance of the complainant's evidence, as obviously occurred, would have made it futile, and probably confusing, to direct the jury in accordance with the appellant's submissions.

The remaining ground of appeal related to the appellant's counsel's objection to the prosecutor asking the complainant whether she consented to the sexual activity which she engaged in with the appellant on the basis that the question was "leading"; the point, as I understand it, is that the question asked about a disputed matter in a form which permitted a simple affirmative or negative response by a witness who might be expected to answer in only one way, reducing or perhaps eliminating the probative value of the answer: cf. Moor v. Moor (1954) 1 W.L.R. 927, 928. Assuming that that be so, it is plain, in my opinion, that there was no substantial miscarriage of justice. With or without the answer, if the jury accepted the complainant's evidence it can have been in no doubt as to her state of mind.

I agree with McPherson and Davies JJ.A.s' reasons for refusal of the application for leave to appeal against sentence.

JOINT REASONS FOR JUDGMENT - DAVIES AND McPHERSON JJ.A.

The appellant was brought to trial on three counts of rape, one of indecent assault, and one of deprivation of liberty, alleged to have been committed on 29 March 1992. He was convicted on all counts and sentenced to an effective term of imprisonment of nine years. He now appeals against his convictions and seeks leave to appeal against the sentences imposed.

On Saturday 28 March 1992 the complainant was living at home with her mother and other members of her family. The appellant, whom she had known for some five years, was a visitor at the house. Late on that night the complainant was asked to drive him home because he had been drinking. They drove off with the appellant seated next to her giving directions. After some time he directed her into an area of bush and told her to stop. He opened the car door and told her to get out, after which he pushed her against the car door and held a knife to the base of her neck. She was told to get on the bonnet of the car, where he had sexual intercourse with her (count 1). Then she was ordered to perform an act of oral sex on him, which later became the subject of count 2 on the indictment. This was followed by a further act of sexual intercourse on the car bonnet (count 3). After an interval during which some cigarettes were smoked, the appellant told her to lie on the ground and he again had sexual intercourse with her (count 4). Thereafter the complainant was allowed to drive home, where she complained to her sister about what had happened to her.

At the trial, at which the appellant gave evidence, the appellant admitted the acts of sexual intercourse but claimed they were consensual. Grounds 1 and 2 of the appeal relate to this issue. It was submitted that the learned trial judge was wrong in ruling that both "limbs" of s.347 of the Code fell to be considered on the facts, and also in allowing the complainant to be asked a question or questions in the form "Did you consent to the act of sexual intercourse?", to which she replied that she had not.

By s.347 of the Criminal Code rape is defined to mean carnal knowledge of a female "without her consent, or with her consent if it is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm ...". What is meant in this context by "both limbs" of s.347 is that the offence created by the section is, so it was submitted, capable of being divided into two forms of rape, one of which comprises sexual intercourse "without consent", and the other sexual intercourse with consent which has been obtained by force, threats, intimidation, etc. It was argued that the present case fell within the second class, with the consequence that the prosecution was required to identify each of the acts of force, threats or intimidation said to have been used to obtain the complainant's consent; and that the trial judge was bound to explain this distinction to the jury but had failed to do so.

It is in our view only in exceptional cases that s.347 requires that any such distinction be made. R. v. Shaw (C.A. 117/1993. Nov. 11, 1993) and R. v. Shaw (No. 2) (C.A. 253/1994. Dec. 12, 1994) was an exceptional case of that kind. There the appellant was charged with raping his sister-in-law in a sexual encounter between them which lasted some two hours or more and which he recorded on film by means of a video camera. In Shaw the complainant's evidence at the trial and the retrial was that she had agreed to participate in this activity only because the appellant had threatened that she would otherwise not be permitted to return home to Melbourne from Innisfail. The case was therefore one in which she consented to having sexual intercourse, but in which her consent was obtained by means of threats or intimidation.

The present case raises no questions of that kind. 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, or strictly even that she should say in evidence at the trial that she did not consent to sexual intercourse. Whether or not oral evidence to that effect is needed to prove a charge of rape depends very much on the circumstances. An obvious case where it is not often given is that of a young or infant girl, or of a woman who is mentally incapacitated, and so is unable to appreciate the nature or significance of the act or later to give evidence about her state of mind at the time. A more mature and intellectually aware complainant would, on the other hand, ordinarily be expected to testify that she did not consent to the act of sexual intercourse that is charged. Whether or not her evidence to that effect is accepted depends on the impression formed by the jury of her credibility considered in the light primarily of the circumstances at the time of the act complained of as disclosed by all the evidence at the trial.

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 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.

In directing a jury on the issue of consent in rape, it is very seldom necessary or even desirable for a trial judge to descend to analysis in this degree of detail. A jury of 12 lay people drawn from members of the community at large do not often need instruction on the nuances of consent in relation to sexual intercourse as an element of the offence. It may, however, reasonably be supposed that they would ordinarily expect to hear a complainant, like the young woman in the present case, affirm on oath that she did not consent to having sexual intercourse with the accused on the occasion in question. It was therefore a perfectly proper question for prosecuting counsel to ask, and for her to answer, at the trial of the appellant. The objection that it involved leading the witness was not well founded. Unless put in some more or less direct form like that, it would have been difficult to elicit from her what her subjective state of mind was at the time in question. Whether or not in the circumstances her answer was to be believed was the critical question for the jury to decide.

In respect of each of the acts of sexual intercourse contained in the three counts of rape, the complainant was asked and said that she had not consented to the act. The jury believed her evidence to that effect. That is scarcely surprising, given that she was a woman only 20 years old, who was being menaced with a knife by a man older and more powerful than she, late at night in a lonely area of bushland, from which she had no ready means of escape or departure independently of his will. Appreciating the force of these circumstances, there was thus no occasion for the judge to burden the jury with philosophical discussions of the conceptual differences, if any, between not consenting to sexual intercourse, and consenting to it only because of the effect of threats or intimidation used by the appellant, or the fear of bodily harm which she had at the time.

The first two grounds of appeal therefore fail. The third concerns the charge of indecent assault (count 2). Her evidence on this matter was that the appellant had told her to "give him a head job". The transcript proceeds:

What did you do then? --- I ended up doing what I was told.

Why was that? --- Because I was scared and he threatened my life.

On the basis of the decisions in Fairclough v. Whipp (1951) 35 Cr.App.R. 138 and Burrows (1951) 35 Cr.App.R. 180, it was argued at the trial that the act of oral sex described by the complainant could not constitute an indecent assault because in law there cannot be an assault unless the act done would be an assault without consent. Having regard to the definition of "assault" in the Code, it may be doubted whether those decisions can usefully be applied in Queensland to the circumstances like those disclosed in evidence here; but, in the end, that question does not arise for decision on this appeal. The trial judge avoided the problem implicit in the two English decisions by directing the jury that what the prosecution relied on to establish count 2 was the complainant's evidence that "prior to her sucking his penis [the appellant] was standing in front of her naked waving the knife around in a threatening manner".

It was acknowledged on appeal that in this particular the appellant's conduct was capable of amounting to an indecent assault on a woman within the terms of the Code. The complaint on appeal was that it involved a degree of unfairness to the appellant at the trial because there was a shift of emphasis on the part of the prosecution from the act of oral sex itself to conduct of the appellant immediately preceding it. However, when the point was raised at the trial, counsel for the Crown announced that no further reliance would be placed on the act of oral sex as a circumstance of aggravation of the assault but only on the preceding conduct of the appellant. It is difficult to see that, in adopting that course, any perceptible disadvantage or prejudice was inflicted on the appellant in the conduct of his defence. It was not a case in which the appellant could claim to have been taken by surprise, and no suggestion to that effect was made at the time.

Grounds 5 and 6 arise from the action of the prosecution at the trial in adducing evidence of the accused's "flight" on being informed of the accusation of rape against him, which the judge directed in his summing up was capable in law of amounting to corroboration. At the time of the events giving rise to these charges the appellant was on leave of absence from the Dutton Park Correctional Centre where he was then serving a sentence for other offences. About a month later while on another period of leave, he was summoned back to the Centre by prison officers and informed of the allegation of rape against him. He thereupon left the Centre in a friend's car and did not report in or return on the date when he was due back. It was not until 26 December 1992 that he was located and arrested.

On appeal it was conceded that, viewed in isolation, his conduct in that regard was capable of being construed as evidence of a consciousness of guilt on his part. It was, however, said that, when considered in the light of other circumstances, a different interpretation of his conduct was available. There was evidence that, after being told on 25 April of the allegation against him, the appellant went to see an acquaintance Amanda Harrison, who confirmed his recollection that he was at her home on the night of Sunday 29 March 1992, but said she did not wish to provide a written statement or to become "involved". A question was raised at the trial about whether at the Centre he had been told the date on which the rape was alleged to have taken place. In fact, the offences were alleged to have occurred on the night of Saturday 28 March, or more accurately, the early hours of Sunday 29 March, which is the date that was later charged in the indictment.

It was argued that, believing as the appellant said he did, that he had an alibi for the night in question, his sudden departure from the Correctional Centre on 25 April and his failure to return to it were not capable of being considered as in the nature of flight indicative of a guilty conscience. The fact remains, however, that the appellant decamped from the Centre and failed to return, and the matter thus remained one for the consideration of the jury in the light of all the circumstances as they found them to be. As such it was legitimate for the trial judge to leave it to the jury to decide whether or not it in fact had a tendency to confirm the complainant's account that what had happened on the night in question had taken place without her consent.

Ground 6 complained of the trial judge's decision to allow cross-examination of the appellant with respect to his previous convictions. The discretion under s.15(2) of the Evidence Act 1977 to do so was admittedly enlivened by defence crossexamination of the complainant and her sister, which involved imputations on the character of those witnesses for the prosecution. It was put to each of them that they had participated in some of the credit card frauds of which the appellant had been convicted and for which he was undergoing sentence at the time when he was alleged to have committed the subject offences against the complainant. Although denied by the complainant and her sister, the imputations were later pursued by the appellant to the extent of his giving evidence about their alleged participation in those frauds.

In exercising his discretion under s.15(2), the trial judge was careful to limit cross-examination of the appellant to offences involving dishonesty on his part, of which there was a considerable number extending over a period of some 10 years or more. Even if it is correct to say, as was submitted on appeal, that the discretion to permit such cross-examination is to be exercised sparingly, the present case is not one in which the trial judge's decision can be faulted. The fact that the jury already knew from other evidence that the appellant was undergoing sentence for fraud was not necessarily enough to maintain or restore the confidence of the jury in the credibility or character of the complainant or her sister. The attack on the credit of the complainant and her sister was in the circumstances a largely gratuitous exercise designed to drag them down to the level of the appellant. It could be fairly answered only by letting the jury know the true extent of the appellant's record of persistent dishonesty.

The appellant's written outlines of argument foreshadowed an application to add a further ground of appeal; however, Mrs Richards of counsel for the appellant said that the application would not be pursued unless grounds 1 and 2 proved successful. The outlines also make it plain that ground 7 would not be maintained.

The appeal against conviction must be dismissed. The appellant himself also sought leave to appeal against the sentences of imprisonment for nine years for the three counts of rape, two years for the indecent assault, and 18 months for deprivation of liberty, to be served concurrently. He is 33 years of age with, as has been mentioned, a lengthy criminal history dating back to 1978. In addition to a large number of offences of dishonesty, he has also been convicted of drug offences, dangerous driving, and robbery. At the time these crimes were committed against the complainant, he was serving a sentence or sentences for other offences; in what he did he abused the privilege of leave of absence from the Correctional Centre, and in failing to return as required he contravened the terms of that leave.

In addition he grossly betrayed the favour that was done for him by the complainant in agreeing at his request to drive him home late at night from the safety of her own home, where he had been received as a visitor and friend. He has shown no sign of remorse for what he has done. Not surprisingly, the experience undergone by the complainant has had lasting effects on her well being and outlook on life.

The appellant's principal complaint about the duration of the sentences imposed here was related to their impact on the term of imprisonment he was already undergoing for the other offences committed. In that regard, he suggested that he had been prejudiced by some delay in charging him after he was located and arrested in late December 1992. At the hearing there was a dispute about the responsibility for that delay, which was never finally resolved. However, the matter ceased to be relevant because the learned judge acting under s.157 of the Penalties and Sentencing Act was required to and did set a fresh parole date. In doing so, he took into account the totality principle and, making the nine year sentence concurrent with the sentences currently being served, he recommended that the appellant be considered for parole after serving 4½ years of that sentence.

It is not shown that in arriving at that decision the judge erred in the exercise of his discretion or that the result he reached bears harshly or unfairly on the appellant. The sentences imposes are within the range and there is no justification for reducing them.

The appeal against conviction is dismissed and the application for leave to appeal refused.