Regina v XHR

'No case' application: legal principles 11In R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452 the Court was concerned with a no case application in respect of a circumstantial case. King CJ, at 337, stated: "The case against the appellant Starke was circumstantial in character. The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt." (emphasis added) 12His Honour continued: "Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer." (emphasis added) 13In Doney v R [1990] HCA 51; 171 CLR 207 the Court observed, at 212, that there was: "... no doubt that it is a trial judge's duty to direct [a verdict of acquittal] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict." 14Doney involved the question whether a trial judge has power to direct the jury to enter a verdict of acquittal on the ground that, although there was evidence sufficient to sustain a conviction, a verdict of guilty would be unsafe and unsatisfactory. In answering that question, the Court stated, at 214-215: "... if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." (emphasis added) 15The Court added, at 215, that neither the power of a criminal appellate court to set aside a verdict that was unsafe or unsatisfactory, nor the inherent power of a court to prevent an abuse of process, provided a basis for enlarging the powers of a trial judge on such an application at the expense of the traditional jury function. Doney was accepted as established principled in R v LK [2010] HCA 17; 241 CLR 177 at [29] per French CJ. 16In R v R (1989) 18 NSWLR 74, Gleeson CJ approved the following statement of principle in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416: "The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies, J. explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt." 17In JMR (1991) 57 A Crim R 39, at 44, Lee CJ at CL (Carruthers and Finlay JJ agreeing) accepted that R was authority for the proposition that a judge may not direct an acquittal in a case dependent upon circumstantial evidence: "... if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated ..." 18These authorities establish that in considering a 'no case' application, the trial judge is required to determine "whether there is evidence in respect of every element of the offence": Bilick and Starke at 337 (emphasis added). Further, and of particular relevance to this case, the actus reus of the offence, which here was the alleged act or acts of sexual intercourse, may form the basis to establish, by inference, the third element of the offence, namely, absence of consent. It was necessary for the trial judge to draw that inference in this case unless he was satisfied of some exceptional or extreme circumstance: Bilick and Starke at 337. The examples of exceptional or extreme circumstances given in Bilick and Starke were where the allegation was the product of a disorderly mind or the evidence was manifestly self-contradictory.

Crown appeal from directed verdict: the Crimes (Appeal and Review) Act, s 107 19The Crown through either the Attorney General or the DPP may appeal against a directed acquittal in the circumstances provided for in the Crimes (Appeal and Review) Act, s 107. 20Section 107 provides, relevantly: "107Directed jury acquittals or acquittals in trials without juries (1)This section applies to the acquittal of a person: (a)by a jury at the direction of the trial Judge, or ... (2)The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone. ... (5)The Court of Criminal Appeal may affirm or quash the acquittal appealed against. (6)If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 1978) order the detention or return to custody of the accused person in connection with the new trial ..." (emphasis added) 21It has been held that the right of appeal, conferred by s 107 on a ground that "involves a question of law alone", is narrower than an appeal "on a question of law" and that neither of those phrases is equivalent to "error of law": R v JS [2007] NSWCCA 272; 175 A Crim R 108 at [74]. There will, however, be some overlapping of matters that fall within each description. Thus, although s 107(2) does not speak in terms of "error of law", an appellate court is not entitled, upon the identification of a "question of law alone" to embark upon a review of the trial judge's reasons and substitute its own determination. Error in the identified question of law must be demonstrated. 22The legal concepts that either fall within s 107(2) or which are outside its reach are relatively well settled. The construction of a provision of a statute "involves a question of law alone" for the purposes of s 107(2): JS at [74], [83]. A statement by the trial judge of the elements of an offence also falls within s 107(2). In R v PL [2009] NSWCCA 256; 199 A Crim R 199, the Court of Criminal Appeal (per Spigelman CJ, McClellan CJ at CL and R A Hulme J agreeing) held that the statement by the trial judge, that on a charge of homicide it was necessary for the Crown to prove a particular act that brought about the injury which caused death, involved a question of law alone and was erroneous. See also Williams v R [1986] HCA 88; 161 CLR 278. 23An appeal on a mixed question of fact and law does not fall within s 107(2). In PL the Court also held, at [25], that no appeal lay pursuant to s 107(2) where the question in issue was whether the trial judge had correctly applied the relevant legal principles to the facts. As Spigelman CJ explained, at [26], the determination of whether the trial judge had correctly applied the principles of law to the facts necessarily required an assessment of those facts. In other words, the process of "applying" a principle of law to the facts involved a mixed question of fact and law and thus did not fall within s 107(2). However, "if the question of law can be stated and considered separately from the facts with which it may be connected", there is a "question of law alone": Williams at 287 per Gibbs CJ. 24In Williams, the relevant statute conferred a right of appeal, with leave, on the Attorney General against an acquittal "on a question of law alone". It was held that the wrongful rejection of evidence by the trial judge in the exercise of a discretion was not an appeal on a question of law alone: see at 287, 301-302 and 314. The excluded evidence comprised a number of records of interview which had been obtained after the time that the trial judge held it had been practicable to bring the accused person before a justice to be charged. The records of interview were admissible in the usual course but were rejected in the exercise of the trial judge's discretion. As Mason and Brennan JJ observed, at 302, "[t]he manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case". However, notwithstanding the different terms of the statute in Williams, these particular propositions apply to s 107(2). The extent of overlap in the statutory provisions under consideration in Williams and s 107(2) does not need to be addressed. 25Before leaving these introductory remarks, one further comment needs to be made. In JS, Spigelman CJ stated, at [74]-[75], that for the purposes of an appeal under s 107, it was necessary for the notice of appeal to particularise, with some precision, the "question of law alone" said to be involved in each specific ground of appeal. In observing that direction, the Crown in this case did not seek, by way of an independent ground of appeal, to rely upon an argument that the trial judge failed to properly apply the principles relating to a directed verdict. The Crown's grounds of appeal were those identified in the notice of appeal.

The grounds of appeal 26The Crown identified four matters in the trial judge's determination which, it contended, "involved questions of law alone". Those matters were: (1)His Honour's implicit finding that it was necessary for the Crown, in order to establish the mental element for the offence, to prove the complainant communicated her lack of consent to the respondent prior to the act constituting sexual intercourse; (2)His Honour's failure to have regard to the requirements of s 61HA(3)(d); (3)His Honour's taking into account that there was no evidence of threats, force, coercion or pressure in determining whether there was sufficient evidence to establish the mental element of the offence; (4)His Honour's rejection of the Crown's reliance upon the respondent's answers in his interview with police as part of its circumstantial case on the mental element of the offence. 27The Crown approached the task of demonstrating that each of these grounds "involved a question of law alone" by identifying the legal proposition at the heart of each matter: see PL at [46]. In order to do so, the Crown first identified the circumstantial evidence upon which it relied to establish the third element of s 61I, namely, that the respondent knew the complainant was not consenting to the act of sexual intercourse.

Ground 1: was it necessary for the Crown to prove that the complainant had communicated her lack of consent to the act of sexual intercourse? 28The Crown submitted that it was not necessary, for the purpose of establishing that the accused person knew that the complainant was not consenting, for the Crown to prove that, prior to the act of intercourse taking place, the complainant communicated her lack of consent to the act of intercourse: see Salmond v R [2010] NSWCCA 141; R v Porteous [2003] NSWCCA 18; s 61HA(3). The Crown submitted that it was apparent from the remarks in the trial judge's reasons that his Honour considered that this was part of the requisite proof of the third element of the s 61I offence. 29The structure of his Honour's reasons is relevant to this submission. The trial judge commenced his reasons with a reference to the charge, the elements of the charge and the evidence, which his Honour accepted as being sufficient to satisfy the first and second elements of the charge. His Honour also observed that the Crown relied upon circumstantial evidence arising from the complainant's evidence and certain statements of the respondent in his ERISP. His Honour correctly identified the principles and case law governing a 'no case' application where the Crown relied upon circumstantial evidence to establish the third element of the offence. His Honour then commenced his review of the complainant's evidence. His Honour noted, at 6, that part of the complainant's evidence in which she said she did not consent to the respondent touching her on the outside of her vagina and her clitoris. His Honour then stated, at 7: "However, she agreed that at no stage when he was touching the outside of her vagina or her clitoris did she say or do anything which may have indicated to him that she did not want him to do what he was doing." His Honour then continued with his review of the complainant's evidence. 30His Honour next noted that the respondent was subsequently arrested and interviewed by police by way of an ERISP and that in the ERISP the respondent admitted that he had performed a massage but denied sexual intercourse. 31Next, at 9, his Honour noted that the DPP, in proof of the third element of the offence, relied upon the complainant's evidence, together with the following statements in the respondent's ERISP: that a full body massage never included a massage of the genital area; that he did not touch the complainant on the vagina; and that she did not give him permission to do so. His Honour did not particularise the complainant's evidence that he understood was relied upon by the Crown. The relevance of this last observation is explained below. His Honour next rejected the Crown's reliance on the respondent's answers in the ERISP as admissions. 32His Honour then stated, at 9-10: "It is abundantly clear from the complainant's evidence that at no stage did she say or indicate to [the respondent] in any way that she did not consent to the various things he did to her, and in particular the touching or massaging of her vagina and clitoris. Indeed the only occasion that the complainant indicated that she did not want [the respondent] to do something was after he had touched her clitoris when she opened her eyes and saw [the respondent's] head leaning towards her groin area, when she then held up hand in a 'Stop' sign and told [the respondent] 'No' or 'No, thank you', to which [the respondent] had replied 'Oh okay, no worries' and then proceeded to massage her lower legs and feet." 33His Honour next noted it was abundantly clear that no threat had been made to or coercion exerted upon the complainant. His Honour concluded that "[h]aving reviewed the totality of the evidence" and having considered the applicable principles governing a 'no case' application, he was satisfied that the Crown case was not capable of proving the third element of the offence. 34The Crown acknowledged that there was no express statement by his Honour to the effect that the Crown was required to establish communication of an absence of consent prior to the intercourse occurring. The Crown submitted, nonetheless, that his Honour's remarks revealed that he had approached his determination on that basis and thus had determined the application on a wrong principle of law. His Honour's determination thus involved a question of law alone: see PL especially at [52]. 35In PL, the trial judge had correctly stated the legal principles that applied to the determination of a directed verdict of acquittal. In particular, the trial judge had noted that it was not sufficient, in a circumstantial case, for a trial judge to conclude that there was a reasonable hypothesis consistent with innocence. In PL, the Crown had submitted that the trial judge made statements, in the course of considering whether to direct a verdict of acquittal, that were inconsistent with principle. Spigelman CJ observed that if the trial judge had proceeded upon the basis that the Crown had to establish the particular act of the accused that caused death his Honour would have erred. Such error would have involved a question of law alone within the meaning of s 107(2). 36The trial judge in PL had not made any express statement to that effect. The respondent argued that the trial judge had merely made a finding that on the whole of the evidence, taken at its highest, guilt could not be established and thus the challenged reasons involved conclusions of fact. 37Spigelman CJ embarked upon a careful and extensive analysis of the trial judge's reasons, including the language used, to determine whether his Honour had proceeded on an incorrect principle of law or whether he was explaining his conclusion as to the facts. The Chief Justice, at [67], observed that in the impugned paragraphs, there was no indication given by the trial judge that any fact, other than the difficulty in identifying the cause of death, was pertinent to his determination. His Honour concluded, at [68], that: "By expressly giving determinative significance to the inability to establish a particular cause of death [his Honour] did not pay regard to the other facts to which the jury could have had regard on the issue of both the actus reus and mens rea of the offence charged ..." 38Accordingly, the trial judge's reasoning involved a question of law alone and was erroneous. 39In the present case, the DPP submitted that in circumstances where the only specific evidence to which the trial judge referred on the question of consent was the complainant's omission or failure to convey to the respondent that she was not consenting, it was plain that the trial judge considered that was a necessary element of the Crown case. 40The respondent acknowledged that had his Honour held it was necessary for the Crown to prove that the complainant communicated her lack of consent prior to the act or acts of sexual intercourse, that would "involve a question of law alone". The respondent submitted, however, that his Honour neither expressly nor impliedly held that it was necessary for the Crown to do so for the purposes of establishing the third element of the offence. Rather, the respondent contended that the passage of his Honour's reasons upon which the DPP relied involved findings of fact and could not be converted into the legal proposition for which the DPP contended. In this regard he submitted that on a fair reading of the judgment, all his Honour was saying was that "on the facts [the complainant] did not communicate a lack of consent". 41The respondent also contended that evidence that the respondent knew that the complainant did not consent would be relevant to the third element of the offence as would evidence that indicated absence of protest or complaint. The respondent further argued that it could not be said, on a proper understanding of his Honour's reasons, that this was the determinative reason the third element had not been established. This was clear, it was said, from his Honour's express statement that he had "reviewed the totality of the evidence". 42The first passage relied upon by the DPP, set out above at [29], did not merely involve a recitation of the fact of lack of protest. The statement was introduced by the word "However", indicating something contrary to that which preceded it. The matter which preceded it was the complainant's evidence that she had not consented. Considered as a matter of contrast, the observation that she had not communicated lack of consent indicated that his Honour considered this to be a relevant matter. The question is whether his Honour considered it to be relevant only to an assessment of the immediately preceding evidence to which he had referred, or whether he considered it was relevant because there was a legal requirement on the Crown to prove communication of absence of consent. 43In the second passage, set out above, at [32], the trial judge used emphatic language, viz, "[i]t is abundantly clear", in making his observation that the complainant had not communicated her lack of consent to sexual intercourse during the course of the massage. 44The question of lack of communication was thus referred to twice by the trial judge. There was the initial reference to the complainant's evidence that she did not consent: see at [29] above. That evidence was marked out by the contrasting reference to the evidence that the complainant had not communicated her consent. There was then the emphatic reiteration of the absence of communication of consent: see at [32] above. 45Almost immediately after the second reference to the lack of communication of consent, his Honour posited the test he was required to apply on the 'no case' application, that is, that he was required to accept the evidence in the Crown case at its highest and that he was to apply the principles in, inter alia, Doney and JMR. It should be assumed, therefore, that his Honour correctly approached his determination of the 'no case' application. In reaching his conclusion that there was no case to answer, it is also apparent from the evidence to which I have referred and the prominence he gave it, that he took into account that the complainant had not communicated her lack of consent to any sexual intercourse. 46For the reasons already explained, the complainant's evidence could sustain a verdict of guilty. She gave evidence of the acts of sexual intercourse and that she had not consented to those acts. This was evidence of the first and second elements of the offence. There was an available inference as to the third element to be drawn from the evidence of the actus reus, namely, that the respondent knew that the complainant was not consenting: see Bilick and Starke. The evidence that the complainant did not communicate her lack of consent prior to the sexual acts taking place did not negative her evidence that she did not consent. 47Accordingly, on the assumption that the trial judge applied correct principle to the determination of the 'no case' application, being an assumption I consider should be made, his Honour must have determined the application on the basis that the Crown was required to establish communication of absence of consent prior to the acts of sexual intercourse occurring. Otherwise, his Honour's reference to there being no communication of absence of consent would have been entirely irrelevant. In my opinion, it was only the absence of that communication that could have led to his Honour's ultimate conclusion that the Crown case was not capable of proving the necessary inference to found guilty knowledge for the purpose of the third element of the offence. As that was incorrect as a matter of principle, s 107(2) has been satisfied. 48Accordingly, I consider that ground 1 of the appeal has been made out by the Crown. That is sufficient for the determination of the appeal, other than for the question whether the Court should nonetheless affirm the acquittal. I deal with that question later. In deference to the careful arguments of the parties in respect of the remaining grounds of appeal, it is appropriate that I consider the remaining grounds of appeal.

Ground 2: failing to have regard to the requirements of s 61HA(3)(d) 49Section 61HA(3)(d) provides that, for the purpose of determining whether an accused person has knowledge within the meaning of s 61HA(3)(c) that a complainant is not consenting to sexual intercourse, the court must have regard to, inter alia, "any steps taken by the person to ascertain whether the other person consents to the sexual intercourse". 50Although he did not do so by reference to the section number or paragraphs, the trial judge referred to the provisions of ss 61HA(3)(a), (b) and (c) by a statement of what each of ss 61HA(3)(a), (b) and (c) encompassed. By contrast, his Honour made no reference to s 61HA(3)(d), either in express terms or inferentially. His Honour neither stated any facts that might have been relevant to para (d) nor engaged in any legal reasoning that indicated he had considered its requirements. 51The DPP submitted that the complete absence of any reference to s 61HA(3)(d) or to anything that could be construed as a reference to that provision, demonstrated that his Honour failed to have regard to the provision, as he was required to do. The DPP sought to demonstrate its point by reference to what occurs at a trial when knowledge of consent is in issue. Given the terms in which s 61HA(3)(d) is cast, when the trial judge is directing a jury as to the third element of the offence, a direction must be given that the jury is to consider the reasonable steps taken by the accused person to ascertain whether the complainant was consenting. 52The absence of any reference to s 61HA(3)(d) in determining the 'no case' application led, on the DPP's submission, to the conclusion that his Honour failed to have regard to it, as he was required to do. Another way of expressing this was that his Honour misdirected himself in law on this question. The DPP submitted that even if the trial judge had regard to s 61HA(3)(d), he could not have directed a verdict of acquittal in this case. This was not a case where there was no evidence. It was a case where there was evidence which, even if the trial judge considered it to be weak, was required to be left to the jury. 53The DPP further submitted that an examination of the transcript of argument before the trial judge supported the submission that his Honour failed to have regard to s 61HA(3)(d), which, the DPP contended, involved an objective test. In the course of argument on the hearing of the 'no case' application, the trial judge stated that the test for determining the question of knowledge, in any of its three forms specified in s 61HA(3), was not an objective one. Rather, it was a subjective test. His Honour repeated his view in emphatic terms, when he said "[i]t's not an objective test at all". His Honour later reiterated, "[w]e're concerned here with a subjective test" and continued: "... it's a question of whether or not the evidence is capable of establishing, accepting her evidence, that the relevant elements can be established, because that's really the only evidence ..." 54His Honour made the following further remark: "CROWN PROSECUTOR: But one of the issues in relation to the third element is what would be a reasonable basis upon which to-- HIS HONOUR: That's the third part of the test. Well it's not reasonable basis, it's not quite in those terms ... It's whether the person has no reasonable grounds for believing that the other person consents to the sexual intercourse, that's the element." His Honour's reference to the "third part of the test" was clearly a reference to s 61HA(3)(c). 55The respondent submitted that the Crown bore the onus of establishing a matter or issue involving a question of law. He contended that notwithstanding that there was no express reference to s 61HA(3)(d) in his Honour's reasons, it could not be inferred that the trial judge failed to take s 61HA(3)(d) into account. The respondent argued that whilst s 61HA(3)(d) was a mandatory consideration, the absence of a reference to it in the reasons of a trial judge was not sufficient to establish that regard was not had to that matter. It was possible that in this case his Honour had regard to it, as required, but did not refer to any steps that the respondent had taken in circumstances where there was no issue that he had not taken any steps to ascertain whether the complainant was consenting. The respondent's defence was that no sexual intercourse occurred. 56The respondent further submitted that it was unlikely his Honour did not have regard to the consideration mandated by s 61HA(3)(d) in circumstances where his Honour clearly had the terms of the section before him. This, he contended, was apparent from his Honour's reference to the terms of ss 61HA(3)(a), (b) and (c). 57In his written submissions, the respondent submitted that even if the trial judge failed to have regard to s 61HA(3)(d), this Court should undertake that task and arrive at its own conclusion as to whether there was evidence capable of proving beyond reasonable doubt the necessary element of guilty knowledge in any of its three forms. In my opinion, that task is not given to this Court by s 107. Whilst there may be similar considerations involved in the Court's disposal of the appeal under s 107(5), that provision involves a judicial task of a different nature altogether. Section 107(5) involves the Court in a discretionary determination as to whether the trial judge's verdict of acquittal should be affirmed or quashed: see LK at [11] per French CJ. 58The respondent's submission raises a question as to how an appellate court should read a trial judge's reasons. The respondent submitted the appellate court should not infer the trial judge had failed to refer to or have regard to a specific matter simply because there was no express reference to it. He directed the Court's attention to the comments of Spigelman CJ in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [88]. In that case, the trial judge, in the course of sentencing, had stated "I see no reason to find special circumstances in this case". The question arose whether the trial judge had failed to give reasons for refusing to find special circumstances. The Chief Justice stated that in view of the wide ranging considerations capable of constituting special circumstances, a failure to explain why the statutory proportion was not varied would not readily be accepted as a basis for an inference that the sentencing judge did not turn his or her mind to the issue. This was particularly so in circumstances where the trial judge had expressly made reference to the matter of special circumstances. 59A failure to have regard to a statutory provision which governs the determination of a matter is, unquestionably, a matter that "involves a question of law alone". The only question for determination, therefore, is whether the reasons reveal that his Honour failed to have regard to s 61HA(3)(d). 60A review of the trial judge's reasons indicates that his Honour set out the matters that he considered to be relevant, albeit in brief terms. Thus, at 1, his Honour set out the elements of the offence that the Crown was required to prove. Next, at 1-2, his Honour referred to the evidence relied upon to prove the first and second elements of the offence. His Honour observed that, in proof of the third element, the Crown relied upon circumstantial evidence based on the evidence of the complainant and statements made by the respondent in his ERISP. His Honour, at 2 and again at 10, referred to the principles that governed a 'no case' application. His Honour observed that there was evidence to establish the first and second elements of the offence and that the question in issue was whether there was evidence to establish the third element of the offence. His Honour next stated the three aspects of knowledge specified in s 61HA(3)(a)-(c) in the manner to which I have referred and then embarked upon a review of the evidence. As I have said, his Honour made no reference to s 61HA(3)(d) either expressly or inferentially. 61His Honour may have considered that the stark difference between the complainant's evidence of the assault and the respondent's denial in the ERISP simply meant there was no issue that no steps were taken by the respondent to ascertain whether the complainant was consenting and that there was, therefore, no reason to refer to it. However, even if that was his Honour's approach, s 61HA(3)(d) does not involve a mechanical approach to its application. If the evidence discloses that the accused person took no steps to ascertain whether the person consented, any further consideration of that matter can not merely be put to one side. 62The relevance of whether an accused person took any steps to ascertain consent is inextricably bound up with all the other factors in the case. The words of the section expressly indicate this is so, but it must follow as a matter of ordinary human experience. Thus, if the accused and complainant are in an ongoing relationship, the failure to take steps to ascertain consent may not be surprising and so may not be of any or much assistance in the fact finding task posited by s 61HA(3). If the accused and complainant are in a relationship of service provider and client, the failure to take steps to ascertain consent may be and would likely be very relevant to the question of the accused person's knowledge. There are many factual situations in between these two, some much more nuanced than others. 63Accordingly, it would not have been sufficient for his Honour to have simply put para (d) to one side as not being relevant because, on the evidence, the respondent took no steps to ascertain whether the complainant was consenting. His Honour was required to consider that matter as part of the determination of whether there was evidence that could prove beyond a reasonable doubt the third element of the offence. The observations of King CJ in Bilick and Starke at 337, referred to above at [11]-[12], are of particular relevance in this regard, as are the comments of the High Court in Doney. Given that his Honour was required to consider the steps taken by the respondent to ascertain whether there was consent, I am of the opinion that it should not be assumed, in what appeared otherwise to be a comprehensive, albeit economical review of fact and law, that his Honour considered something, dismissed it as not relevant and thus did not mention it in his judgment. 64I would only add that even if it was appropriate to have regard to the transcript, I did not find it of assistance in determining this question. 65Accordingly, I have come to the conclusion that his Honour failed to have regard to para (d) and that failure involved a question of law alone. Ground 2 of the notice of appeal has therefore been made out.

Ground 3: the trial judge's reference to there being no evidence of threats 66I have referred above to the outline of his Honour's judgment as well as to the passages relating to his Honour's references to the complainant's failure to communicate her lack of consent. Immediately following the second of those references, set out at [32] above, the trial judge stated, at 10: "It is also abundantly clear from the evidence of the complainant that at no stage did [the respondent] threaten her in any way or force, coerce or pressure her to let him do anything." 67It is apparent that his Honour's reference to the absence of threats or coercion was a reference to s 61HA(4) which provides: "(4)Negation of consent A person does not consent to sexual intercourse: ... (c)if the person consents to the sexual intercourse because of threats of force or terror ..." 68His Honour may also have had in mind s 61HA(6): "(6)The grounds on which it may be established that a person does not consent to sexual intercourse include: ... (b)if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force ..." 69Sections 61HA(4) and 61HA(6) are only relevant where there is apparent consent to sexual intercourse but the consent is negatived because, relevantly, it was induced by force or intimidatory conduct. The DPP submitted, therefore, that it was an irrelevant consideration to have regard to this question in circumstances where there was no issue, on either the Crown or defence case, that the complainant had not consented. The matter in issue on the third element was whether the respondent had knowledge of the complainant's lack of consent. The DPP submitted, therefore, that his Honour's reference to this factor, in circumstances where it was not relevant, involved a fundamental misunderstanding of the statutory provision and was thus an error involving a question of law alone. 70The respondent acknowledged that if absence of threats, force, coercion, or pressure was not relevant to the third element of the offence, the test in s 107(2) would have been satisfied. He submitted, however, that whilst the question of threats, force, coercion, or pressure was undoubtedly relevant to the second element of the offence, such matters were not irrelevant to the third element. The respondent advanced the following arguments as to why this was so. First, he contended that the question of threats, force, coercion, or pressure was relevant because if there was evidence that the respondent had pressured the complainant in any way, that could rationally affect, even if indirectly, the assessment of the probability of whether he knew that she was not consenting: see Evidence Act 1995, s 55. Secondly, the respondent submitted that such evidence was relevant having regard to the terms of s 61HA(6)(b). Thus, if the respondent threatened or coerced the complainant, that would lead to the inference that the respondent had some knowledge that the complainant did not consent. This would be relevant to his state of mind as to whether the complainant was consenting or not. It followed, on the respondent's submission, that a finding of fact on the relevant evidence did not demonstrate error on a matter involving a question of law alone. 71The question for determination, therefore, is whether, in referring to the absence of evidence of threats, his Honour considered that to be relevant to the determination of whether the respondent had knowledge that the complainant was not consenting. In my opinion, the evidence does not bear the relevance for which the respondent contended. The point of s 61HA(4) and s 61HA(6) is to specify the circumstances in which apparent consent will be treated as no consent in law. Here, the question of consent was not in issue, as his Honour recognised in his judgment. The only issue was the respondent's knowledge. The question of threats or coercion or the absence thereof was not relevant to the determination of that question. His Honour must have considered it relevant to the third element, otherwise there was no point in his reference to it. There was, therefore, in my opinion, a finding by his Honour involving a question of law alone. 72The respondent also submitted that his Honour's finding that no threat or force had been used was a finding that was open on the evidence and did not involve any legal proposition. For the reasons I have given, I do not consider that to be correct. 73The respondent further relied upon the terms of s 61HA(7), which provides: "(7)A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse." 74I do not consider that his Honour's statement bears any relationship to s 61HA(7). The respondent's reliance on s 61HA(7) is to invert his Honour's reasoning. 75Accordingly, for the reasons I have given, I consider that ground 3 of the notice of appeal has been made out.

Ground 4: prohibiting the Crown from relying upon the respondent's answers in the ERISP in support of its circumstantial case 76The respondent participated in an ERISP on 28 April 2011. The interview was conducted with the assistance of an interpreter. The respondent was asked, at Q 67, to describe what happened when the complainant arrived and was given a massage. He said through the interpreter: "A (Int):The lady came in asking for a massage service. She asked me to do a massage on her back. I then asked whether she need the massage with oil or not. She said, 'Yes, with oil.' And then I handed a towel to her and closed the curtain. I then ask her to, you know, take the pants off the bottom because for that service we have to start from that part and then I did massage and also I did massage on her neck as well. INTERPRETER He's just saying, you know, definition for back in massage service it include shoulders and also the neck. ASometime not but sometime people come in - - -" 77The respondent said that a half hour back massage service normally included the shoulders and neck. He said that the complainant had been there before, so that he "reckoned she knew ... what that mean by saying the back". 78The respondent said that having provided the service on the complainant's back, he asked whether she needed a massage on her chest and she said "Yes". After he had done that he asked her whether she needed a massage on her stomach and she again agreed. He next asked whether she needed a massage on her legs, to which she also agreed. At that point, he said "Can I take off your pants", to which she said "Yes". He said that he began working on the complainant's legs and feet. He said that by the time he had finished one foot, she looked at her watch and said that she didn't have any time left. He told her, "I just balance a little bit". This appears to have been a reference to massaging her other foot. He then went out and waited for the complainant to dress. 79When the complainant emerged, the respondent said he asked her, "How do you feel, is that is it O.K.?" She asked how much and he told her $40. The complainant replied "Look, I have told you ... I only need back massage, that would be twenty five dollars". The respondent said he tried to explain to her that he had provided a full body massage with oil and that he normally charged $50 for that service. He said that he added "Look, forty dollars, that's really, you know, good price". The complainant said that she would only pay for the back massage to which he agreed, saying "It's O.K., you know, twenty five dollars". 80He said that his staff told him that he should have charged the complainant the correct rate and that they reminded him that "'It looks like this lady came before', and also owes her money". This last comment seemed to be a reference to a female staff member alleging that she was owed money for additional services provided to the complainant on a prior occasion and for which the complainant refused to pay. 81The respondent said that when the complainant was in his shop: "... she appeared very happy ... nothing unusual happened and also every when I start doing every part of her body I did ask her, you know, whether she need it just as a rule. Yeah, she smiled, you know, all the time." 82Later in the ERISP, the respondent was asked more particular questions about various parts of the massage. In relation to his request as to whether he could remove the complainant's pants in respect of the leg massage, he said "I then take off the pants starting from the bottom, take it off". He said that when he took the pants off the complainant was wearing underwear. He said that he did not take her underwear off, but when he was working on her stomach he "pulled her underwear down a little bit". In respect of the leg massage, he said that normally he would "put a towel on the location". 83The respondent's attention was drawn to the complainant's allegation that when the respondent pulled her pants down, "her underpants came with [them] so she was lying there with nothing on". The respondent denied that occurred, stating that when he was "pulling her pants off she was holding her underwear that moment". The following question was then asked: "Q110.... The female also alleges that when you were massaging her leg ... you have moved your hands up and touched the outside of her vagina, her, actually the outer lips of her vagina." The respondent, through the interpreter answered: "A.O.K. Exact answer was, the exact answer was, I believe I didn't but sometime when we do this movement I might, his answer. Whether what she believes I don't know but absolutely I didn't." 84He said that sometimes he might "touch that" because he had to massage that part of the muscle. The ERISP records that he indicated the part of the body to which he was referring. He said that when he was at 'school' he was told "it was an important part but they do, they contact that groin. Yeah". He said, however that the complainant did not agree to have "that part done", so he "didn't do it". The question followed: "Q116The lady also alleges in her statement that while you were massaging her vagina you were massaging her clitoris." The respondent, through the interpreter, stated "No". The transcript of the ERISP records that the respondent also answered "No" in English. 85The respondent, at Q and A117, expressly denied that the complainant at any time had her underpants down. At Q and A121, the respondent, through the interpreter, said that the complainant had expressly said "No, no", meaning that she did not want her groin area to be massaged. The respondent reiterated, at A122, that when he was massaging the complainant's legs she had her underpants on. He said that in a massage "you have to keep your underwear on", but that some men and women prefer to be completely naked. However, he said that at no stage was the complainant completely naked. 86The trial judge rejected the Crown's submission that these answers in the ERISP, considered together with the surrounding circumstances were capable of giving rise to an inference that the respondent had no reasonable grounds for believing the complainant had consented to sexual intercourse. His Honour, at 9, considered the Crown's intended reliance upon these answers overlooked that they constituted a complete denial that the respondent had massaged the complainant's vagina intentionally or touched her clitoris. In those circumstances, his Honour said he was not satisfied that the respondent's answers were: "... capable of amounting to admissions to the requisite guilty knowledge for the third element of the offence charged when either considered alone or in combination with the complainant's evidence ..." Nor was his Honour satisfied that the evidence was: "... capable of being used to infer, together with the complainant's evidence, the requisite guilty knowledge or state of mind on the part of [the respondent] for which the Crown contends." 87The DPP submitted that in determining whether the evidence was "capable" of constituting the admissions for which it contended, his Honour was making a conclusion of law. The DPP contended that, as part of the jury's determination as to whether the third element of the offence had been established, it would have been open to a jury to consider the respondent's answers in the record of interview that no sexual intercourse had occurred, as constituting an admission that the complainant had not consented to any touching of her genitalia and that a full body massage would never involve doing so. 88During the course of the argument before the trial judge, the Crown expressly disavowed that it was relying upon the respondent's denials in the ERISP as lies. However, the DPP contended that these answers were relevant to the Crown's circumstantial case, namely, that the relationship between the respondent and the complainant was one of service provider and client, and that on the respondent's case, sexual intercourse was never a part of the practice in which he engaged in the provision of massage services. If the jury accepted the complainant's allegation that sexual intercourse occurred, it would be relevant for the jury to consider why, on this occasion, the respondent departed from his usual practice. In other words, it was a relevant aspect of the circumstantial case that the Crown was advancing. 89The DPP relied upon the principles stated in Mule v The Queen [2005] HCA 49; 221 ALR 85. In Mule, the appellant had been charged and convicted by a jury of possession of a prohibited drug with intent to sell or supply to another. The evidence before the jury included a videotaped interview with police, where the appellant had admitted that ecstasy tablets found on his property had been in his possession but had been for his "personal use". 90The appellant did not give evidence at the trial. The prosecution sought to rely upon the admissions made by the appellant concerning possession and the appellant sought to rely upon his denials. The trial judge instructed the jury that a video cassette tendered by the prosecution and admitted into evidence was evidence "for the [appellant] as well as against him" and "could be used for all legitimate purposes". The High Court (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) stated, at [14]: "...the proposition that the whole of the recorded matter was available as evidence for the consideration of the jury was not in contest in this appeal. It reflects the accepted view of the law in this country, and it accords with the current state of the law in the United Kingdom." See also: Lopes v Taylor (1970) 44 ALJR 412; R v Cox [1986] 2 Qd R 55; Spence v Demasi (1988) 48 SASR 536; R v Aziz [1996] AC 41; [1995] 3 All ER 149. 91The Court further stated: "[20]... The judge was bound to instruct [the jury] (as he did, in orthodox fashion) about the appellant's right to silence. He also instructed them that the whole of the contents of the interview amounted to evidence to which they could pay regard. It was legally correct for him to tell them that they were not obliged to give the same weight to everything that was said in the interview. Indeed, if he had not told them that, it is possible that they might have assumed the contrary, or at least they might have been left uncertain as to their capacity to discriminate between different parts of the evidence. [21]Jurors are commonly told that they may approach the evidence selectively and in a discriminating fashion, that it is for them to decide what evidence they accept and what evidence they reject, and that the law does not require them to give all evidence the same weight." (emphasis added) 92The Court held, at [22], that such a direction was correct as a matter of law. 93The DPP submitted that Mule demonstrated that the trial judge had erred in preventing the Crown from relying on "the inculpatory portions" of the ERISP, namely that the respondent stated a massage would never involve digital penetration and that the complainant did not consent to such penetration, because the respondent had denied that any act involving penetration had occurred. The DPP further submitted that in determining whether the third element of the offence had been proved, it would have been open to the jury to consider the respondent's admission that the complainant had not consented to any touching of her genitalia and that a massage would never involve digital penetration. 94The respondent accepted that if an accused person stated in a record of interview words to the effect "I did not get any permission or consent from the complainant", such evidence would be relevant. However, the respondent submitted that in finding that the Crown was not entitled to rely upon the statements in the ERISP, his Honour approached the issue on the basis that he was required to accept the complainant's evidence at its highest. As this involved disregarding the respondent's denials that no sexual intercourse occurred, his Honour was also entitled to disregard the respondent's consequential evidence that he did not obtain the complainant's consent. 95His Honour considered the question of the capacity of the evidence to establish the respondent's state of mind. In doing so, he stated that he was not satisfied that the evidence had that capacity. However, that was not the question for his Honour's determination on the 'no case' application. Rather, his Honour was required to determine whether: "... the evidence [is] capable of producing in the mind of a reasonable person satisfaction, beyond a reasonable doubt, of the guilt of the accused?": Bilick at 337 per King CJ. 96In making his determination, the trial judge was required to assume that the evidence of primary fact upon which the prosecution relied was accurate. His Honour was further required to draw all inferences from that evidence that were most favourable to the prosecution's case. As those principles were to be applied to this case, his Honour was required to accept the complainant's evidence that sexual intercourse had occurred and that she had not consented to it. 97In my opinion, his Honour was also required to accept the answer the respondent had given in the ERISP at A132, that a full body massage never included a massage to the genital area. This evidence was of a different nature to his evidence of denial that any sexual intercourse occurred. It was evidence of the invariable manner in which he conducted his practice. It was not evidence of a denial of sexual intercourse on this occasion. It was evidence that sexual intercourse would not have occurred because it never occurred in the provision of a body massage in his business. In my opinion, this evidence was relevant to the Crown's circumstantial case. 98It follows that ground 4 of the notice of appeal has also been established.

Should this Court exercise its discretion and not make an order under s 107? 99The respondent submitted that even if this Court upheld any one of the grounds of appeal, it should not make an order under s 107(5) quashing the acquittal. He submitted that the evidence was such that on an appeal, after a trial, an appellate court would quash a conviction as being unreasonable: see PL at [90]. Underpinning the approach referred to in PL was the important consideration that s 107 is a statutory incursion into the principle of double jeopardy, but the legislature had nonetheless recognised that even if the court's jurisdiction under s 107(2) was enlivened, the court retained a discretion pursuant to s 107(5) to either confirm or quash the acquittal against which the appeal was brought. As Spigelman CJ also said in PL, at [87]: "... the abrogation of the double jeopardy principle is a powerful consideration indicating that the Court was intended to be able to exercise its discretionary powers so as to minimise the injustice associated with a new trial after an acquittal." 100The respondent submitted that should this case go to trial, there were two bases upon which an appeal from a conviction would be overturned as unreasonable. 101First, the evidence in support of the third element of the offence would be so flimsy that a conviction based on that evidence would be unreasonable. Further, there was no evidence indicating that, during the course of the massage, the respondent had been acting in a "sexual sleazy manner". For example, he did not engage in any sexual banter. The respondent also relied upon that part of the complainant's evidence in which she said that when she observed the respondent leaning his face towards her groin area, he desisted immediately when she said "no". 102Secondly, the respondent submitted that given the very short period of time involved in the act of sexual penetration (on the complainant's evidence this was between 2 and 10 seconds) the Crown could not prove beyond a reasonable doubt that the sexual penetration was not accidental. In this regard, the respondent relied upon that part of the complainant's evidence in which she said that when the respondent touched her vaginal area, "[t]he movements he made were exactly the same as the movements he'd use for a massage". 103The respondent submitted that it was apparent from this evidence that the "massage clearly resulted in ambiguous signals being sent to the complainant". Thus, although the complainant said she thought, when the respondent commenced to massage her vagina, that it was "weird", she did not say anything because she was wondering whether she was overreacting and whether what was occurring was normal. The respondent submitted that this case was different from Porteous, where the sexual intercourse "was not momentary and was totally outside the ordinary course of a massage and could not be regarded as mistaken sexual penetration". The respondent also submitted that this case was to be distinguished from Salmond where it was clear on the evidence that the penetration was both intentional and sexual in nature. 104The DPP submitted that the Court would not, in the exercise of its discretion under s 107(5), affirm the acquittal. The DPP argued that this was a strong circumstantial case. It submitted that in determining this question, it was necessary for the Court to have regard to the principles to be applied in setting aside a conviction as unreasonable: see M v R [1994] HCA 63; 181 CLR 487, including the regard which an appellate court was required to have to the role of the jury and the special position a jury is in when assessing the evidence of witnesses. 105In my opinion, the respondent's submissions should be rejected. I agree with the DPP that this was a strong circumstantial case. In those circumstances, the orders I propose are: (1)Verdict of acquittal quashed; (2)Remit the matter to the District Court for trial. 106HALL J: I agree with the orders proposed by Beazley JA for the reasons set out in her Honour's judgment. 107S G CAMPBELL J: I agree with Beazley JA.

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