RH v R

Court of Criminal Appeal (NSW)|2011-04-01|Before: Davies JJ, Grove AJ, Davies J, Simpson J

Judgment 1SIMPSON J: I agree with Davies J. 2DAVIES J: The Appellant stood trial on 4 counts as follows: Count 1: That between 14 June 2001 and 26 January 2003 he had sexual intercourse with [AEN], a person above the age of ten years and under the age of sixteen years contrary to s 66C(1) Crimes Act 1900. Count 2: That between 14 June 2001 and 1 September 2003 he had sexual intercourse with [AEN] , a person above the age of ten years and under the age of sixteen years. Count 3: On or about 28 November 2007 he did assault [AEN] and at the time of such assault commit an act of indecency upon him, contrary to s 61L Crimes Act 1900. Count 4: On or about 28 November 2007 he did have sexual intercourse with [AEN] without his consent and knowing that he was not consenting, contrary to s 61I Crimes Act 1900. 3The trial was before Judge Coolahan and a jury. His Honour directed the jury to acquit in respect of Count 1. 4The jury found the Appellant guilty of Counts 2, 3 and 4. 5On Count 2 he was sentenced to a fixed term of 12 months imprisonment to commence 12 December 2009. On Count 3 he was sentenced to a fixed term of 12 months to commence 12 June 2010. On Count 4 he was sentenced to imprisonment for 3 years to commence 12 June 2010 with a non-parole period of 18 months commencing on 12 June 2010 and expiring on 11 December 2011. 6The Appellant now appeals against his conviction on the following grounds:

(a) The trial judge erred in failing to give a direction in respect of counts three and four as to what constituted knowledge as to a lack of consent. (b) The trial judge erred in failing to give a direction in respect of count three that it was an element of the offence that the appellant knew that the complainant was not consenting.
The directions in respect of consciousness of guilt were inadequate giving rise to a miscarriage of justice. The Appellant does not seek leave to appeal against the sentences imposed.

The facts 7The Appellant is AEN's half-brother, and is 5 years older than him. They both have the same father. AEN was raised by his mother and did not know his father until he was about 10 years old. At that time he spent some time with his father where he apparently met the Appellant. He and the Appellant got on well and the Appellant also stayed with AEN and his mother at her home. 8In about June 2001, shortly after the Appellant turned 16, the Appellant came to live with AEN and his mother in a town in northern New South Wales. AEN was then 11 years old. The Appellant continued to reside with AEN and his mother until some time after his 18 th birthday in June 2003. The Appellant had a good relationship with AEN's mother and called her "mum".

(a) Count 2 9The evidence in relation to the first count was that at some time when AEN was about 12 years of age the Appellant had sucked his penis. This took place in the bedroom at AEN's mother's place where the 3 of them were living. 10Subsequently, AEN told the Appellant that he was going to tell his mother about what had happened. AEN's evidence was that the Appellant said that if AEN ever said anything he would make out that AEN wanted it, that no-one would believe AEN, and that the Appellant would kill himself. The result was that AEN did not tell his mother about what had happened.

(b) Counts 3 and 4 11These counts both arise out of the same facts. 12Whilst the Appellant lived with AEN and his mother a close relationship developed between the Appellant and AEN's mother. When the Appellant was 17 years old he told her that he was gay. Shortly after he turned 18 in about 2003 he moved out of their home and went to live in Sydney. At this time AEN was 13 years old. 13In 2007, the Appellant renewed contact with AEN and his mother, and in October 2007 moved back to live with them. 14Between Monday 26 November 2007 and Thursday 29 November, AEN's mother and his grandmother travelled to Melbourne for a holiday, leaving AEN and the Appellant at home. At this time AEN was aged 17 and t he Appellant aged 22. 15At 2 pm on Wednesday 28 November 2007, AEN rode his scooter to meet the Appellant and they went home. At approximately 7.30 that evening, AEN and the Appellant drove to a local bottle shop where the Appellant bought a 700ml bottle of vodka. AEN bought two 2 litre bottles of orange juice. AEN and the Appellant then returned home and started drinking vodka mixed with orange juice. 16The Appellant and AEN watched a movie and AEN spoke to a friend of his, EZ, via MSN (live internet chat). While AEN was chatting on line with EZ, the Appellant wrote that AEN was sexually frustrated. AEN then telephoned EZ but was interrupted by the Appellant who complained that he was spending too much time on the phone. Shortly after this, AEN ended the conversation with EZ. 17After the phone call with EZ ended, the Appellant and AEN started to drink vodka straight from the bottle, finishing the bottle at about 10 pm. About 5 minutes after the bottle was finished, AEN, who was not used to drinking vodka, vomited. The Appellant was with AEN in the toilet when he vomited. 18After AEN vomited, the Appellant undressed him and put him in the shower as he had vomit "all over" him. The Appellant also got into the shower and washed AEN who was sitting on the shower floor. The Appellant also washed himself then helped AEN out of the shower. After getting out of the shower AEN sat on the side of the bath tub, and then fell into the bath. The Appellant helped AEN out of the bath and dried him. As he was drying AEN, the Appellant said "Your dick's a weapon". After drying AEN the Appellant put him into his bed, naked. After getting into bed, the Appellant put a bucket next to the bed and AEN vomited again. AEN thought that he then went to sleep. 19Some time later AEN woke to find that the Appellant was sucking his penis and moving his hand up and down on his penis. As soon as he realised what was going on AEN jumped out of bed and went to let the dogs out of the garage. AEN looked at his watch when he did this and saw that it was 3 am. AEN then went to sleep in his mother's bed. 20The following morning AEN drove the Appellant to work. There was no communication between them in the car. 21That evening, AEN collected his mother and grandmother from the local airport and drove them home. His mother noticed that he was not himself. She noticed that the Appellant and AEN did not appear to be getting on - AEN appeared to be angry with the Appellant. 22On Saturday 1 December 2007, the Appellant told AEN's mother that he was going to spend the weekend with a friend. He left early that morning taking most of his belongings. 23The following day he came to collect more of his belongings and told AEN's mother that he was going to move to his friend's place (where he had previously lived) so he could work things out. 24On that evening (Sunday 2 December) AEN and the Appellant exchanged a number of text messages . The text messages received by the Appellant were photographed and put into evidence. AEN's texts in response were not saved. He gave evidence as to his responses to them. 25The messages culminated in AEN informing the Appellant that if the Appellant was not going to tell AEN's mother what had happened then AEN was going to do so. The final message from AEN to the Appellant was " obviously you're choosing for me to tell mum". 26At 9.59 pm on Sunday 2 December 2007 AEN, whilst in his bedroom, sent a text message to his mother in her bedroom which read: "Mum on last Wednesday night me and [the Appellant] got drunk I know you'll be pissed off but more importantly [the Appellant] done some things that were disgusting and sick I woke up in the early hours of the morning to [the Appellant] touching and sucking me down there I was to ashamed to tell you until now I just didn't have the courage to speak up". A further part of the message that was not photographed by police read "[the Appellant] is too gutless to own it. Said it was my fault." 27After AEN's mother read this message she called AEN out of his bedroom, asked him if it was true, and when he told her that it was, took him to the local police station. At about 10.45 that evening, AEN spoke with police. A formal statement was made two days later on 4 December 2007. 28Ms DB is the mother of TB, a school friend of the Appellant's. In late November 2007 the Appellant asked Ms DB if he could stay at her place, saying that "something had happened between him and his brother". The Appellant stayed in TB's room as she was away. On Sunday 2 December 2007 Ms DB took the Appellant to AEN's mother's home to collect his things. The Appellant spent the remainder of the day sitting cross legged with a phone in his hand in TB's darkened room. The Appellant refused offers of food. Later that evening, Ms DB went to the Appellant's room and seeing that he was not there searched unsuccessfully for him. Shortly afterwards, Ms DB heard loud screaming from the front verandah and saw the Appellant lying face down, with one arm bent behind him and blood on his face. A Stanley knife was nearby. An ambulance was called, arriving at 11.20 pm that evening. The Appellant had cut his wrists and made superficial cuts to his neck. 29After AEN spoke to police on 4 December 2007 AEN's mother asked him whether this was the first incident and he replied that it was not. AEN's mother then contacted the police again and, on 10 December 2007, AEN made a further statement to police detailing allegations relating to incidents that occurred between 2001 and 2003. In cross-examination, AEN said that he did not mention the earlier incidents to police because he was scared that no-one would believe him. This further statement provided the basis for Counts 1 and 2. 30Police first spoke with the Appellant in relation to the allegations made by AEN on 18 December 2007. On that occasion the Appellant told police that he had sought legal advice from the Law Society and had no comment to make. At the time, the Appellant told police that he intended to move to Brisbane. 31In October 2008, police filed a warrant seeking the Appellant's extradition from Queensland to New South Wales for the offences (the delay was not explained). Subsequently, on 16 October 2008, two Queensland police officers attended the Appellant's address in Queensland, placed him under arrest and took him to the local police station. After being cautioned, the Appellant spoke with the police on the way to the police station. 32The Queensland police conducted 2 Records of Interview with the Appellant. In the first of these interviews the Police put the facts of 27 November 2007 to the Appellant including the following: The victim has gone to bed and fallen asleep. A short time later at 3.00am the victim has woken to the accused licking the victim's scrotum before performing oral sex on him. The victim stated he was dozing on and off for about 15 minutes before actually realising what was occurring. He also stated that the accused was trying to wank him off. At the time the victim's penis was erect. 33The Appellant did not make any comment with respect to the recitation of those facts, nor was he asked to do so except as follows: Q. 15. Was the, the sexual contact consensual, on that night? A. Yes. Q. 16. And was it er, how was, how do you know that the sexual contact was consensual? A. It happened over two hours, he got up three times to go to the toilet, laid back down and I continued. Q. 17. Did he verbalise a consent to you at all during that time? A Um, there was just ah vocal noises of um, what you usually receive when you're getting that sort of thing done. 34The second Record of Interview took place within about half an hour of that one. The Appellant asked to give the Police his version of events. Relevantly he said this: Um, and basically we um did shower together, um, comment, there were comments made that there was no act. I did not proceed to do anything to [AEN] in the shower. Um, he um basically, there were um at that point hints of something that may have hap, may be happening, um and then once he actually got into bed um, we, we did continue that act. Um, I performed oral sex on him and did wank him off. Um he consented; he walked to and from the toilet three or four times. I asked him if he was okay. He said he was fine. Um, I said are you okay with what I'm doing? He said yes, it's fine and we continued. He didn't say yes, it's fine, there, there (sic) just my words but it was a yes, it was a I am fine with this.

The evidence at trial 35The evidence in chief from the complainant concerning Counts 3 and 4 related the drinking of the vodka, the subsequent vomiting by AEN, the fact that the Appellant cleaned AEN up, showered him and put him to bed. AEN said that after he got into bed he vomited into a bucket. Thereafter the following evidence was given: Q. And what happened then? A. I think I went to sleep. Q. What's your last memory of [the Appellant] before you went to sleep? A. That was pretty much it. Q. Do you recall waking up some time later? A. Yes. Q. What was your first memory of when you woke up, what was happening? A. [The Appellant] was sucking and touching me down there. Q. How was he positioned? Where was he? A. He was on the bed as well. Q. He was on the bed? A. Yes. Q. And what position were you in, do you remember? A. I was on my back. Q. You were lying on your back in the bed? A. Yes. Q. And you say he was touching and sucking you down there. Can you just describe for the jury what you mean by that? A. He had his mouth over my penis and was giving me a hand job. Q. And - I beg your pardon? A. He was giving me a hand job. Q. At the same time? A. Yes. Q. And what was he doing with his mouth, when it was over your penis? A. Moving it up and down. Q. When you first woke up, how aware were you of what was going on? A. As soon as I realised what was going on, I jumped out of bed. Q. And how long did it take for you to realise fully what was going on? A. Couldn't have been long at all. Q. Did you say anything to him? A. No. Q. Did he say anything to you? A. "What are you doing?" Q. Did he say anything to you of a sexual nature? A. Not that I can remember. Q. What caused you to jump up and get out of bed? A. The fact that [the Appellant] was doing them things to me. Q. Did you say anything to him to indicate that you consented to what he was doing? A. No. 36When counsel for the Appellant cross-examined AEN the only challenge to the version given by AEN was to be found in these questions: Q. And sir, isn't it the case that when the accused, your brother, put you into the bed and got into bed with you, you put one leg over his leg and put his hand onto your penis; this is in the night when you had been drinking and he had been drinking. That is the way it commenced, isn't it? A. No. (At T43.48 - 44.2) ... Q. Sir on the night in November of 2007 I'm suggesting to you that during the course of the sexual episode in your bed that on a couple of occasions you got up from the bed, went into the toilet and then came back and got into the bed, your bed, where [the Appellant] was and that sexual contact continued. Do you agree with that or disagree with that? A. I disagree. ... Q. And the accused, I'm suggesting to you, asked you whether you were okay with things, that is the sexual contact between yourself and him? He did ask you whether that was okay didn't he? A. No. (T52.50 - 53.29) 37It was not suggested to AEN that he dozed on and off for about 15 minutes during the sexual act nor that he made vocal noises suggesting he consented to what the Appellant was doing. 38The Appellant did not give evidence, but the Crown placed into evidence the 2 Records of Interview that the Queensland Police conducted with the Appellant. 39In his address to the jury counsel for the Appellant did not deal with the competing accounts of the events of 28 September 2007. Instead he devoted much of his address to attacking the reliability of the evidence given by AEN, and the motives of his mother.

Ground 1 40His Honour's direction in relation to Count 3 was this: So far as count 3 is concerned - and I am paraphrasing - but it reads that on or about 28 November 2007 at [a town in northern New South Wales] the accused assaulted [AEN] and at the time of such assault he committed an act of indecency upon him. In this case there are two essential elements. They are that on or about 28 November 2007 the accused assaulted [AEN] and, secondly, at the time of the assault he committed an act of indecency upon him. In this case, members of the jury, the crown relies upon the one activity as constituting both the assault and the act of indecency and that is the allegation of [AEN] that after the drinking session and after he had gone to bed he woke up to find the accused masturbating him and sucking his penis. For the purpose of this trial, an assault simply means a deliberate touching without lawful consent. Whether an act is indecent or not, members of the jury, is a matter for you to determine. It depends on the circumstances under which it was committed and it depends upon whether you think it would offend the standards of decency prevalent in the community at the time it was alleged to have been committed. Now, what the crown says here is, "Look, if you accept the evidence of the complainant, [AEN] , beyond reasonable doubt that he woke up to find the accused masturbating his penis, amongst other things, then that constitutes both an unlawful touching without consent and also an act of indecency because there was no consent and it was, in those circumstances, indecent." And indeed, members of the jury, if you are satisfied beyond reasonable doubt that the evidence of [AEN] on that aspect of the matter was both honest and accurate, then the crown will have established those elements in relation to count 3. If you entertain a reasonable doubt about it, then, of course, the accused must be acquitted. ( emphasis added ) 41In relation to Count 4 his Honour said this: So far as count 4 is concerned, it reads that on or about 28 November 2007 at [a town in northern New South Wales] the accused had sexual intercourse with [AEN] without his consent and knowing that he was not consenting. ... In relation to count 4, what the crown has to establish beyond reasonable doubt are these three factors or elements: Firstly, on or about 28 November 2007 at [a town in northern NSW] the accused had sexual intercourse with [AEN]. Secondly, that that intercourse was without his consent and, thirdly, the accused knew that he was not consenting. Again, members of the jury, as I said, the law in New South Wales has an extended definition for the term "sexual intercourse" and it includes fellatio. As to the issue of consent, members of the jury, in this case that is a somewhat simple issue. It is not always the case that it is a simple issue but it is in this case because the crown case on the issue is this, that at the time the alleged act of fellatio occurred or started [AEN] was asleep. He gave evidence that he woke up to find this occurring. Consent must be voluntarily and consciously given. You cannot give consent to something if you are asleep, it is as simple as that and on the issue of whether or not the accused knew that he was not consenting, if you were satisfied beyond reasonable doubt that what [AEN] said about him being asleep was both honest and accurate then you would be entitled to infer that the accused knew that he was not consenting, that he was not conscious and therefore not able to consent to what was happening and you are also on that issue entitled to take into account the way the case has been run. The accused does not say that the complainant was asleep, he says he was awake the whole time. So, on the issue of that third element of the accused knowing that the complainant was not consenting, you are entitled to take into account the way the case has been run. In relation to count 4, if you were satisfied beyond reasonable doubt that the evidence of [AEN] was both honest and accurate in relation to what he says happened, namely that he was asleep and he woke up to find the accused sucking his penis, then the crown will have satisfied you beyond reasonable doubt of all three elements of that offence. If you were not so satisfied of the complainant's evidence, then, of course, the accused must be acquitted. (emphasis added) 42The jury retired to consider their verdict at 12:06pm. Perhaps 5 to 10 minutes prior to 12:54pm the jury sent a note to the Trial Judge which read: Please clarify the elements of Item 3 (specifically consent). 43The Trial Judge subsequently ascertained from the jury that "Item 3" was a reference to Count 3. In the meantime, before the jury was brought in, the following exchange took place between his Honour and counsel for the Appellant: HIS HONOUR: I'll go through the elements again but what I'm trying to avoid is the complicated and unnecessary definitions that go to make up an assault with an act of indecency and try and get it across to them that if they are satisfied beyond reasonable doubt that the evidence of the complainant was honest and accurate, in that he woke up to find the accused masturbating his penis, then that would amount to an assault and also an act of indecency. FLYNN: Your Honour, having read that question, I would ask your Honour to redirect in relation to counts 3 and 4 because on count 4, your Honour, without his consent knowing that he was not consenting, the issue there is even if they accept that the complainant was asleep there has to be evidence that the accused knew that because it was he, the accused, knowing that the complainant wasn't consenting. So, it's not just an issue of whether they a ccept that the complainant was asleep but that that was known at the time to the accused. HIS HONOUR: Well, what I said to them on that issue was that the crown says it would have been obvious that he was asleep and, secondly, they're entitled to take into account the way this trial has been run, which they are. There is authority for that. And the trial has been run on the basis of not that he might have been asleep but I was mistaken, it has been run on the basis that he was awake at all times. FLYNN: That the accused believed he was awake. HIS HONOUR: He was getting up and walking around. FLYNN: Yes. TRIAL ADVOCATE: And it went over hours. HIS HONOUR: Yes. TRIAL ADVOCATE: And it happened before he went to sleep. HIS HONOUR: Yes. So, no -- FLYNN: The crown case is that he was asleep at - sorry, he woke up to find this. HIS HONOUR: Yes. FLYNN: And that it was at that time. HIS HONOUR: Yes. Well if they have a reasonable doubt about that, they've got to acquit. FLYNN: Please the court. HIS HONOUR: I don't intend to redirect them. 44The jury then returned to Court and his Honour redirected the jury in this way: HIS HONOUR: Members of the jury, I have received your note which reads, "Please clarify the elements of item 3 (specifically consent)". Can I just ask Madam Forewoman, by item 3, do you mean count 3? FOREPERSON: Count 3. HIS HONOUR: All right, thank you. As I said to you, one of the elements the crown h as to establish in relation to count 3 is the assault which involves in this case an allegation of touching of the complainant without his consent. Consent is something that has to be voluntarily and consciously given. If you are asleep you cannot give consent to something. And the crown case here is that in accordance with the evidence given by [AEN] , that at the time when the act of masturbation commenced he was asleep and therefore unable to give consent to that act. The crown has to establish beyond reasonable doubt that that was the case, that he was in fact asleep and incapable of giving his consent. So it boils down again to what I said to you earlier members of the jury, in order for you to be satisfied beyond reasonable doubt as to the guilt of the accused on that count, along with the guilt of the accused on counts 2 (sic) and 4, you would have to be satisfied beyond reasonable doubt that the evidence given by [AEN] in relation to each of those individual counts, so far as that count was concerned was both honest and accurate, before you could be so satisfied, you would have to scrutinise his evidence with great care. All right, I hope that clarifies the matters for you and could I now ask you to retire and continue with your deliberations. 45It is in those circumstances that the Appellant now argues that his Honour (a) ought to have given a direction that it was an element of the offence in Count 3 that the Appellant knew that AEN was not consenting, and (b) he ought to have given a direction as to what constituted knowledge as to a lack of consent in respect of Counts 3 and 4. 46The Crown argues that the way the case was run made it unnecessary for the Trial Judge to instruct the jury on the reasonable belief of the Appellant that AEN was consenting to the sexual activity. The Crown submitted that its case was simply that AEN awoke to find the Appellant performing the sexual act upon AEN, whereupon AEN quickly got out of bed to bring an end to the act. On the other hand, the Crown submitted, the Defence case was that the sexual activity went on over some hours with AEN getting up on more than one occasion to go to the toilet and returning to the bed to resume the sexual contact. 47The Crown pointed to what was said by Gleeson CJ in Doggett v The Queen (2001) 208 CLR 343 at [2] that the manner in which a trial is conducted and in which the issues are shaped, especially where an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury and upon the directions, comments and warnings, from the trial judge to the jury. 48The Crown relied upon the approach of the Victorian Court of Appeal in The Queen v Alexander [2007] VSCA 178. That was a case asserted by the Crown to be factually almost identical to the present case. The Court divided 2-1 on the issue of whether the direction given to the jury on the issue of reasonable belief of the Appellant that the complainant was consenting to the sex. 49The Appellant accepts that the jury clearly rejected the defence case concerning AEN going to the bathroom from time to time and returning to the bedroom to continue with the sexual activity. He acknowledged the absence of any cross-examination of AEN to suggest that AEN was consenting but said that that highlighted the fact that the real issue in the case was the belief of the Appellant, at least to the point at which AEN got out of the bed, that AEN was consenting to the sexual act. 50The Appellant argued further that other matters pointed to that being the issue in the case. The first of these was the statement made by AEN in his evidence in chief that "I think I went to sleep". Secondly, and in conjunction with that statement was what appeared in the Records of Interview put into evidence by the Crown, that AEN made vocal noises " what you usually receive when you're getting that sort of thing done". Further, the police facts put to the Appellant in the first Record of Interview included the statement that AEN said he was dozing on and off for about 15 minutes before actually realising what was occurring.

Consideration 51In R v Kuckailis [2001] NSWCCA 333 the Appellant was charged with attempted sexual intercourse without consent contrary to s 61I Crimes Act and a second count that the Appellant had assaulted with an act of indecency contrary to s 61L. Howie J with whom Bell J and Smart AJ agreed said at [18]: The point raised by the Crown Prosecutor is that the directions given by his Honour in respect of the second count were erroneous in that the distinction which his Honour drew between the two offences was that in the first the Crown had to prove the state of knowledge of the appellant that the complainant was not consenting, whereas in the second count, the indecent assault, all that the Crown had to prove was the lack of consent. However, there is no doubt that, in order for the appellant to be convicted of the indecent assault of the complainant, the Crown not only had to prove that the complainant was not consenting but also that the appellant knew that she was not consenting or was reckless to that fact: R v Bonora (1994) 35 NSWLR 74; Fitzgerald v Kennard (1995) 38 NSWLR 184. The distinction which his Honour drew between the two counts on the indictment in terms of the necessary mental element did not in fact exist. 52In the present case the Trial Judge, when he first directed the jury in relation to Count 3, said nothing about the Appellant knowing that AEN was not consenting. In relation to Count 4 his Honour identified that the third element of the offence was that it had to be shown that the Appellant knew that AEN was not consenting. 53Because his Honour declined to accede to the Appellant's counsel's request, after the note from the jury was received, the jury were not subsequently told that it was an element of Count 3 that the Crown had to prove that the Appellant knew that AEN was not consenting. In that respect Ground 1(a) is made out. Given that Counts 3 and 4 arose out of the same acts, the issue of whether that failure by the Trial Judge amounted to a miscarriage of justice is to be considered in relation to Ground 1(b) with which I will now deal. 54Although one might have expected the cross-examination of AEN to have taken a somewhat different or additional approach, the failure to cross-examine about all of the matters contained in the Records of Interview cannot remove the obligation of the trial judge: ... to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. Pemble v R (1971) 124 CLR 107 at 118. 55Further, as Barwick CJ said in Pemble , if the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties by virtue of the cross-examination. But, as in Pemble , this was not a civil trial. Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law: Pemble at 117 per Barwick CJ; and see also Menzies J at 133 and Windeyer J at 139. The remarks of Gleeson CJ (in dissent) in Doggett at [2] must be seen in that light. 56All the judges in Alexander accepted the principle that the mere failure by the Appellant's counsel to put to the jury that even if they accepted the complainant's version they could not be satisfied beyond reasonable doubt that he did not believe that she was or might not be consenting, would not have absolved the Trial Judge from the obligation to tell the jury that such a finding was open to them providing there was evidence on which such a conclusion could have been reached - see Chernov JA at [18], Nettle JA (dissenting) at [53] and Ashley JA at [58]. 57Chernov JA also referred to the earlier decision of the Court of Appeal in Victoria in R v Tran [2007] VSCA 19 where Redlich JA said that the distinction between what the judge was bound to identify and what he was not was a distinction between the "real issues" that plainly arise from the evidence and a "remote or artificial possibility" - at [40]. This distinction was picked up again in R v Bertrand [2008] VSCA 182; 188 A Crim R 223 at [133]. 58In a similar way, the Crown submitted, following Bertrand at [112]-[113], that Pemble is to be read in the light of the earlier observations of the High Court in Alford v Magee (1952) 85 CLR 437 where it was said that the law to be given to the jury was such as would guide them to a decision on the real issue or issues in the case. 59The position was, therefore, that the jury had before it the evidence of AEN that he fell asleep and woke up to find the Appellant performing a sexual act on him. It also had the 2 Records of Interview where the Appellant was asserting that he believed the sex was consensual both because of his assertions that AEN went to the bathroom and returned a few times to resume the sexual act and also by virtue of the noises AEN was making in response to what the Appellant was doing. 60The Crown made express reference in opening to the issue of consent from the Records of Interview. At a later time in the opening the Crown said that there were no circumstances which would have enabled the Appellant to believe that voluntary consent was given by AEN. 61That evidence and those statements by the Crown sufficiently raised the issue of the reasonable belief in the Appellant that AEN was consenting to the sexual act. What emerged from the Records of Interview could not be characterised as remote or artificial possibilities. The reference to it by the Crown in opening reinforces that view. If the jury had accepted what the Appellant said in those Records of Interview they might have found for the Appellant. The Trial Judge not only failed to give the jury adequate assistance in relation to those Records of Interview but by simplifying the issue of consent in the way he did in the highlighted passage, he effectively excluded the issue of the reasonable belief of the Appellant as a matter that the jury ought to consider. 62In any event, it was an element of both Counts 3 & 4 that the Appellant knew that AEN was not consenting. The statement made by the majority judgment in Stubley v Western Australia [2011] HCA 7 at [81], that it was incumbent on the prosecution to establish the absence of an honest and reasonable belief about consent regardless of whether the Appellant gave evidence that he held that belief, is a further indication that the Trial Judge should have given an appropriate direction to the jury about that matter. 63Even if there was some doubt about the obligation of the Trial Judge in the first instance, once the jury made the enquiry it did, the Trial Judge's responsibility was made clear. The jury's enquiry sought a clarification specifically about consent in Count 3. In the light of what the Trial Judge had earlier said to them about consent, it is likely that the jury's concern was precisely about the issue that counsel for the Appellant raised with the Trial Judge. The Judge had told them that the issue of consent was a simple one. He told them that consent must be voluntarily and consciously given and that one could not give consent if one was asleep. He told them that if they were satisfied beyond reasonable doubt that what AEN said about being asleep was honest and accurate they could infer that the Appellant knew he was not consenting because he was not conscious and therefore not able to consent. 64Confined by those limits, the issue of consent was a simple one. The fact that the jury needed further guidance suggested that the issue was not a simple one in their minds and was not confined in that way but may well have involved the reasonable belief of the Appellant about consent, in the light of the evidence contained in the Records of Interview. 65In my opinion Ground 1(b) is made out.

Ground 2 66This ground concerned the adequacy of the consciousness of guilt direction. 67It is now necessary to set out the text of the SMS messages sent by the Appellant to AEN (as they appeared) and the responses that AEN said in the evidence he gave. Time Received/Response: Message Content/ Complainant's Evidence of Response: 6.43 pm I'm gonna work things out to start headin in th right direction and hopefully heal things. I wanna make things better. Promise. KK, I luv ya" (Exhibit A) Complainant's response: "You're a bullshit artist" [T 28.07.09 pp 14-16, 23] 7.47 pm "Actions speak louder then words wit you. So ill make sure my actions communicate that. Cause im serious." (Exhibit B) Complainant's response: The complainant responded to this message, but could not recall the content of his message in response. [T 28.07.09 p 24] 8.37 pm "There is nothin to say to wot u said. Im just gonna have to accept it and leave you be. Ill always be sorry i couldn do th best for you." (Exhibit C) Complainant's response: Again, the complainant's evidence was that he responded to this message, but could not recall the content of his message in response. [T 28.07.09 pp 24-25] 8.39 pm "Oh i am beyond imagination" (Exhibit D) Complainant's response: "You're not sorry". [T 28.07.09 p 25] 8.43 pm "Call me." (Exhibit E) Complainant's response: "No" (by text message) [T 28.07.09 p 26] 8.44 pm "Can I call you?" (Exhibit F) Complainant's response: "No" (by text message) [T 28.07.09 p 26] 8.47 pm "Then I want you to know that I can only fix th future. If you let me" (Exhibit G) Complainant's response: The complainant responded to this message but could not recall his response. [T 28.07.09 p 27] 8.54 pm "Unfortunate thing is you are the one who tried but failed. I would not do it and i never will. No matter how much you push me. You asked too much of me. I can never give you that. That is not what bros are about." (Exhibit H) Complainant's response: The complainant's evidence was that he responded to this message, but could not recall the content of his message in response. After refreshing his memory from his police statement the complainant said that he texted the Appellant "If you're not going to tell mum, I'm going to". In cross-examination the complainant agreed that it was possible that he replied "Will you tell mum" [T 28.07.09 p 27-28, 35] 8.59 pm "Only if you want me to." (Exhibit J) Complainant's response: "Obviously you're choosing for me to tell mum." [T 28.07.09 p 29]

68Between the last of those messages (at about 9:00pm) and 11:20pm (when the ambulance arrived) the Appellant was found by Ms DB lying on the veranda with cuts to his wrists and neck. 69Counsel for the Appellant at the trial sought to have the evidence of self-harm excluded on the basis that the evidence could be misused by the jury and that its probative value was far outweighed by its prejudicial value. After hearing submissions on the matter his Honour reserved his consideration over lunchtime. Upon resumption his Honour said that he proposed to allow the evidence of self-harm because it was a circumstance along with others that the jury were entitled to consider. He went on to say: Of course it will need to be subject to careful directions and warnings but I see no reason for excluding it either under section I'm satisfied that it's capable of being probative (sic). 70When his Honour came to sum up to the jury he said this in relation to the matter of self-harm: You have heard evidence in this case, members of the jury and you in fact have the evidence before you of SMS messages that were sent by the accused to the complainant after the events which give rise to counts 3 and 4 occurred and you have heard evidence that I think it was on 2 December the accused attempted to self-harm and had to be hospitalised and the learned crown prosecutor has invited you to draw the inference that those messages and that self-harm are indicative of a state of guilt on the part of the accused in relation to what he knew to be offences that had been committed against the complainant. Members of the jury, on that issue you have to be extremely careful. An inference is a conclusion of fact drawn from other established facts. There is no dispute but that the SMS messages were sent. Unfortunately, of course, there is no direct evidence in the way of photographs of what the replies to those messages were but you have heard evidence from the complainant about that and there is no dispute but that the accused attempted self-harm and had to be hospitalised but you have to ask yourself, "Does that inevitably lead to the inference that he was feeling guilty about committing offences against the complainant, or could it be consistent with other explanations? May he just have been feeling guilty because of the relationship he had with the complainant, albeit that it was sexual? May there be other reasons? In any event, what do these SMS messages mean?" Can I give you a couple of fairly obvious examples of the dangers of drawing inferences? If you telephoned a friend and the telephone rang out, you might draw the inference that your friend was not home but it would not take long to realise that that was not drawing a legitimate inference, it was jumping to a conclusion. It may have been that your friend was in the shower or out in the backyard; you might have inadvertently dialled the wrong number; the phone might have been malfunctioning; there could be any number of reasons why the phone was not answered, all inconsistent with the proposition that your friend was not home. As another example, if you were in a house and standing next to a room that had only one door and no window and the door was shut and you heard a gunshot come from the room and you went through the door, there was someone lying dead on the ground with a bullet hole in the chest and a gun nearby and a person standing next to them, standing over them, you might draw the inference that that person had just shot the person on the ground. Again, members of the jury, that would be jumping to a conclusion. It is entirely possible, of course, without further evidence, that the person on the ground may have committed suicide. On the other hand, if you were to enter the room and find that the person on the ground had his hands tied behind his back and a gun shot wound to the back of the head, you might legitimately draw the inference that the surviving person had shot him. So, there are dangers in drawing inferences, members of the jury. Before you could draw the inference contended for by the crown in this case I direct you as a matter of law that not only must the material be capable of justifying the drawing of that inference but that it must be capable of drawing no other conclusion. In other words, the inference contended for by the crown must be the only inference reasonably available in the circumstances. 71In Edwards v The Queen (1993) I78 CLR 193 the judgment of Deane, Dawson and Gaudron JJ set out what a jury should be told where the telling of lies is regarded as consciousness of guilt. They said (at 211): Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. See, e.g., Lonergan v. The Queen [1963] Tas S R 158, at p.160; Broadhurst v. The Queen [1964] AC 441 at p. 457). A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect. 72In R v Cook [2004] NSWCCA 52 Simpson J (with whom Ipp JA and Adams J agreed) said at [25] and [50] that where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to a jury are identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. In my opinion, the same principles apply where self-harm is relied upon as evidence of a consciousness of guilt. As Simpson J said in Cook the conventional direction requires a degree of adaptation, and requires a direction that has regard to the evidence in the case. 73The self-harm evidence was prejudicial. The Trial Judge was right in saying that careful directions and warnings needed to be given. The jury needed to be assisted to place the self-harm evidence in its proper context, and particularly its proper chronological context. 74Although AEN's mother first spoke with the police at about 10:45pm on 2 December 2007 there was no evidence that suggested the Appellant had any idea that the police would be involved. The exchange of SMS messages concerned only the desire of the Appellant to fix his relationship with AEN and the issue who would inform AEN's mother of what had transpired. There is nothing to suggest that the Appellant had any idea that he had committed an offence or that he might be alleged to have done so. That was strong evidence against the attempted self-harm being a consciousness of guilt of having committed an offence or any form of admission that an offence had been committed. Rather, it pointed to some other reason for the attempted self-harm. 75Another fairly obvious explanation for the self-harm is to be found in the exchanges of the SMS messages, particularly seen in the light of the changed attitude of AEN towards the Appellant from 29 November to 2 December. It is clear from those text messages that the Appellant was very desirous of mending the relationship that he had damaged by what he had done, a relationship that had been a close one for many years between 2 people who were half-brothers and regarded themselves as brothers. Indeed, the Crown referred in opening to AEN continually rebuffing the Appellant by these messages. 76Simpson J said in Cook at [50]: The flight (or lie) may only be used as evidence of a consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct. It was a significant omission not to point out to the jury that there was no evidence at all that the Appellant knew or believed that the police were or might be involved at the time of the self-harm, and that the only evidence of events leading up to the self-harm from the Appellant's perspective were the exchange of SMS texts which not only showed a rejection of the Appellant by AEN but also involved the issue of informing AEN's mother. It is not difficult to see how the Appellant may have wanted to avoid involving AEN's mother because of his own close relationship with her. 77Counsel for the Appellant did not seek any further directions in relation to a consciousness of guilt and, accordingly, Rule 4 of the Criminal Appeal Rules applies. The Appellant must obtain the leave of the Court to argue the ground. In my opinion, the failure of the Trial Judge to give proper directions in this regard led to a miscarriage of justice with the result that leave should be granted. In my opinion, the ground is made out. 78The remaining issue is whether the failure to give proper directions in this regard concerned only Counts 3 and 4 or also included Count 2. The Appellant argued that the direction was given in respect to all counts because his Honour did not confine his direction to Counts 3 and 4. 79His Honour did not confine his direction about consciousness of guilt to Counts 3 and 4. He made a temporal reference to Counts 3 and 4 when dealing with the SMS messages and mentioning the self-harm. Where the direction was not confined to those counts, and particularly where the jury heard evidence of a threat of self-harm by the Appellant in relation to Count 2, the failure of the Trial Judge to give proper directions in relation to self-harm must have had an effect on the jury's consideration of Count 2 as well as Counts 3 and 4. When it is remembered that the sexual act charged in relation to Count 2 was the same act charged in relation to Count 4 it is not easy to see why the jury would have made a distinction between the two in the absence of the consciousness of guilt direction being confined by the Trial Judge to Counts 3 and 4.

Conclusion 80For those reasons I consider that the absence of appropriate directions in relation to a reasonable belief on the Appellant's part in the consent of AEN and in relation to consciousness of guilt were errors which resulted in a miscarriage of justice. The Appellant's convictions should therefore be set aside. Although the Appellant has served the whole of his sentence in respect of Count 2 and a further 10 months of an overall 18 months non-parole period in respects of Counts 3 & 4 the only proper order this Court should make is to set aside the convictions and to order a new trial. It will be a matter for the Director of Public Prosecutions to decide if it is appropriate for a further trial to be held. 81I propose the following order: Allow the appeal against conviction, set aside the verdicts of guilty, and order a new trial. 82GROVE AJ: I agree with Davies J.

Amendments 18 June 2013 - The section referred to in paragraph 2 Count 4 of the judgment incorrectly read "s 61A Crimes Act 1900". The correct section is s 61I Crimes Act1900. Amended paragraphs: 2 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2013

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