Ground 4: The directions as to the elements of consent on "verdict 2 on charge 2" reversed the onus of proof and were erroneous.
103 Perfectly adequate directions were given by his Honour as to what was required, as a matter of law to establish an act of sexual intercourse, and in particular the necessary degree of penetration. Equally clear was the definition for the jury of the issue which arose upon the evidence as to whether sexual intercourse took place or was attempted, it being stated more than once that it was the defence case that the Appellant did not have sexual intercourse with the complainant or make any attempt to have it.
104 The directions in relation to the element of consent, at least so far as they related to the need for the Crown to show that the appellant knew that the Complainant was not consenting to sexual intercourse, were however less than satisfactory, although no complaint was made at the trial in relation to them.
105 The formula which was used consistently was that noted in the Alternative Verdicts document, namely that the Complainant did not consent to having sexual intercourse with the Appellant, and that "he had no belief that she was consenting".
106 His Honour dealt with consent in the following passages, which were specifically directed to count 2, although they were equally relevant for the alternatives which similarly depended upon lack of consent and knowledge thereof.
"It must be proved beyond reasonable doubt that the accused did this without her consent, that is without the consent of the Complainant. Consent means real consent. If a person is forced to have sexual intercourse by threats or is overpowered, then that is certainly not consensual intercourse. The case for the Prosecution is that the she repeatedly made it clear by words and by resistance in the early stages, that she did not wish to have sexual intercourse with the accused, that she did not consent to it. She told him that but he persisted saying repeatedly, 'Well just get it over and done with.' Whether you think that was a romantic overture or whether it was said in much the same way as might be said to a small child when confronted with some caster oil is a matter for you to decide. In other words, was he saying 'Oh come on you know that you'll consent in the long run so come on let's start now' or was he saying 'Look, you're going to get it whether you want it or not so you may as well reconcile yourself to that and stop resisting.' Well which of those things you believe it to have been is a matter for you to decide. Of course consent is something within the mind of the female, but consent can be indicated by words or by actions, and so too can refusal be demonstrated, conveyed by actions or words.
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If you are satisfied that the Complainant did not consent, that is not the end of the matter, because in the particular circumstances of this case, I believe that it is proper that there would have to be proved beyond reasonable doubt by the Prosecution, that the accused had no belief that the Complainant was consenting to sexual intercourse.
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You must be clear about this, that the onus rests upon the Prosecution to prove that the accused had no belief that the Complainant was consenting to sexual intercourse. He does not have to prove anything. He does not have to prove that he had that belief. The Prosecution must prove that he did not."
107 Later in the summing up his Honour returned to the question of consent in a passage which did not accord with the Alternative Verdicts document or with the earlier directions. This passage was to the following effect:
"It is this, that the accused must have an actual belief that the complainant was consenting. It is not sufficient that he simply never turned his mind at all to that question because if he did not think about it, then he did not have that belief. If he thought about it and thought 'Well maybe she's consenting, maybe she's not', that too would not amount to a belief in consent. In order for him to have had a belief in consent, he must have actually believed that she was consenting."
108 When dealing with intoxication, his Honour said:
"The only relevance of evidence as to the intoxication of the accused is in relation to what was in his mind as regards a belief in consent. A belief in consent, of course, only has to be considered if the jury are satisfied beyond reasonable doubt that there was no actual consent. If the jury are satisfied beyond reasonable doubt that actual consent has been judged, has been proved rather, then that is not the end of the matter because it is also necessary for the jury to be satisfied beyond reasonable doubt that the accused did not have any belief as to the Complainant consenting.
Now that belief in consent does not have to be a reasonable belief, the question is, what was in the mind of the accused at the time. If he genuinely believed that the Complainant was consenting, then it would not matter whether that was a reasonable or an unreasonable belief. What matters is whether he had the belief, and I remind you that as I stated before, the accused does not say that he had sexual intercourse believing in consent, he says that he did not have sexual intercourse at all. It is only because there has been other evidence suggestive of a belief in consent as a result of the past relationship between the parties et cetera, that that element of the offence remains to be disproved by the Prosecution, that is the Prosecution must show beyond reasonable doubt that the accused did not have a belief in consent.
But the accused's case is very simple, he says that he went there and he was upset. He had two accidents with his car, one with a tree and one in which a wallaby had made him hit another tree, and that after those arboreal accidents, he was in need of comfort and that is why he went there. He said that sex was the last thing on his mind when he went there on that occasion, that yes, there was quite a possibility that when he felt better, perhaps in the morning, that sexual intercourse would occur between them, but sexual intercourse had not taken place and had not been attempted by him at all, that in any event, no matter what his intentions may have been, the arrival of Daniel had changed the whole situation and he in effect did not have time to have sexual intercourse even if he had wanted to."
109 Although it was submitted that this was not an entirely accurate account of his case, no complaint was made by trial counsel.
110 As a matter of law the Crown needed to prove that the Appellant had an actual knowledge that the complainant was not consenting, or was reckless as to whether she was consenting (s 61R Crimes Act).
111 The statement of the consent element in the Alternative Verdicts document, which was repeated, at various times, in the summing up, was erroneous, in that proof that the Applicant did not have a belief as to consent, was not necessarily proof that he knew or believed that she was not consenting. Moreover there was a clear error in so far as his Honour said that "if the jury are satisfied beyond reasonable doubt that the actual consent has been…proved, then that is not the end of the matter". It would in law have been the end of the matter, since such a finding would have required a verdict of acquittal. Additionally, the concept of recklessness, so far as that could have been relevant to knowledge, was not adequately addressed, by way of any written or oral direction.
112 The way in which this element was addressed in the passages cited was capable of conveying, at times, an impression that reversed the onus of proof. At best it was confusing and incomplete.
113 The inadequacy of this aspect of the summing up was left uncorrected by counsel. Since the giving of correct directions on elements of an offence are important to a fair trial (Andrews v the Queen (1968) 126 CLR 198 at 209), I consider that leave should be given to the Appellant to argue this ground of appeal.
114 The question which arises is whether, subject to any other error, the case is one to which the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied.
115 The case is one in which I would apply the proviso. His Honour dealt extensively with the question of consent both generally and in the factual context of the trial, in a way which would have left the jury with little doubt as to what the Crown needed to prove. In this regard he added to the previous directions the following:
"Just going back to the question of consent for a moment, I have overlooked something I wanted to say to you and that is that sometimes people consent to sexual intercourse after a time when there was an initial refusal, and it is quite legitimate for the other party to attempt to persuade the other person to change their mind and to have intercourse, but that means to voluntarily change their mind of course, it does not mean to change her mind because she thinks that she will be beaten up or injured or overpowered if she does not. That is not consensual intercourse, but sometimes after a period of refusal or reluctance, in some circumstances there may ultimately be consent. Indeed, that from my recollection without going into too much detail, was part of the courting process, that favours that were requested but initially refused were sometimes later freely granted.
A person may consent to sexual intercourse without any expectation of enjoying it, where two parties are on very good terms, one party has the sexual urge and the other does not, then the one who was without the urge may consent to some form of sexual activity including intercourse simply for the sake of the other. There are some people who never achieve any satisfaction from sexual intercourse, but consent to it nonetheless. No doubt the beautiful young girls who hang around wealthy businessmen and so forth do not look forward to any enjoyment from coupling with such a person, but do so anyway because there are other benefits that may be achieved. But it is up to you to look at what happened in this case. The Prosecution suggests that first of all she resisted but ultimately tired and realised that she had no real option, and even sat up to the extent that she allowed him to pull off her nightdress rather than have it torn off. Well that is a matter for you to consider but those are the matters that would have to be proved before reasonable doubt before the accused could be found guilty of that charge, guilty as charged. But the basic position of the accused, I emphasise, is that the intercourse simply did not take place and the defence also rely upon the fact that there is no evidence to suggest that she did have intercourse, that is no medical evidence. On the other hand, the Prosecution say that the medical evidence does not show that she did not have sexual intercourse anyway."
116 Effectively, the only issue of relevance, in relation to the serious indictable offence element was whether the appellant had sexual intercourse with the Complainant, or had attempted to do so. It was never the case of the Appellant that he had intercourse with her, or had attempted to do so, with her consent. It was his case that he did not have intercourse with her, and did not attempt to do so.
117 I am not persuaded that the absence of a correct direction on consent, in this case, cost the Appellant a real chance of an acquittal.
118 In the light of the undisputed evidence that he had been instructed in no uncertain terms to leave the house earlier in the night, that the Complainant had expressed a lack of interest in him before he left, that she had taken her phone off the hook and had not placed any call to his home after his first visit, that he had attempted unsuccessfully to phone her, and that she was seen to be rubbing her wrists and to have had bruises that were consistent with her account, the only rational inference that was, in my view, open, was that he knew that her submission on his return was non consensual but was forced.
119 The case is one where the jury properly directed could rationally have only come to the conclusion that he was determined, regardless of whether the Complainant consented or not, to have or to attempt to have sexual intercourse with her, subject to overcoming any condition of alcohol induced dysfunction that may have affected him, and that this observations about her "wanting it" and having called him, as well as his somewhat offensive parting observations, were not genuine representations of his state of mind. Rather, they were directed to his attempts to force her to give in to him and subsequently to justify his conduct.
120 The case is accordingly one to which the observations made in Regina v Murray (1987) 11 NSWLR 12 and in Krakouer v The Queen (1998) 194 CLR 202 apply.
121 In Krakouer, Gaudron, Gummow, Kirby and Hayne JJ said, at 212:
"23 We do not accept that the proceedings against the appellant were fundamentally flawed or "have so far miscarried as hardly to be a trial at all". Each of the matters which we have mentioned (the fact that the misdirection concerned an element of the offence, occurred at the end of the trial and reversed the onus of proof) may invite the most careful attention to whether the proviso can be applied; each of these matters may be said to suggest that the jury may have been led into a false or unsafe chain of reasoning. But we are not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed. After all, most cases of misdirection will concern directions about matters relevant to the jury's deliberations and yet the proviso requires that not every "wrong decision of any question of law" lead to the quashing of the conviction or a new trial. As was said in Wilde v The Queen "[t]here is no rigid formula to determine what constitutes such a radical or fundamental error" as to preclude the application of the proviso. Simply demonstrating that there was a misdirection on a matter relevant to the jury's consideration is not sufficient.