Smee v R [2024] NSWCCA 121 | Case summary

The impugned directions

The legal principles relevant to considering an attack on parts of the directions given by a trial judge to a jury were not in dispute. The parties agreed that the relevant legal question was whether there was a real chance that the any misdirection could have affected the jury verdict: note HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [2]. The Crown did not seek to rely on r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). That was so because, as shall be explained, counsel appearing for the applicant below had sought to challenge the directions proposed to be given by the trial judge. Nor did the Crown seek to rely on the proviso if error was made out.
In Cliff v R [2023] NSWCCA 15 the Court noted the importance of reading the directions of a trial judge in context: [11] In determining whether there has been a misdirection sufficient to amount to a miscarriage of justice, the directions must be viewed in totality. In Green v The Queen (1971) 126 CLR 28 at 34; [1971] HCA 55 the High Court referred to reading the summing up "as a whole". In Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 at [68] this Court, in a joint judgment of Leeming JA, Hall and Bellew JJ, quoted with approval the following summary by the Tasmanian Court of Criminal Appeal in Lin v State of Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13 at [108]: [I]t is important for the Court to have regard to the overall impression which the whole summing up would have created in the minds of the jury: R v Ho (2002) 130 A Crim R 545 at [32]; R v Daniel (2010) 207 A Crim R 449 at [25]; R v Thomas [2015] SASCFC 55 at [79]. Small snippets from a summing up should not be wholly divorced from their context; questions of whether particular parts invalidate an otherwise proper summing up raise matters of fact, degree and general impression: R v Calides (1983) 34 SASR 355 at 357. [12] Similarly, in Beattie [[2021] NSWCCA 291] at [26], this Court said: It is trite that the effect of the summing up must be determined by considering the written and oral directions taken as a whole and in the context of the conduct of the trial. A single phrase may be misconstrued if taken out of context.
Here, during his summing up the trial judge provided the jury with a document entitled "Written directions - the essential elements" (MFI7). It contained the following with respect to the issue of consent: The sexual intercourse occurred without the complainant's consent [10] The second element concerns the complainant's state of mind. [11] The Crown must prove that the sexual intercourse occurred without the complainant's consent. [12] Consent means that a person freely and voluntarily agrees to something. The Crown must prove the complainant did not freely and voluntarily agree to the sexual intercourse. [13] You are concerned with whether the complainant did not consent to the sexual intercourse when it occurred. Her state of mind before or after the sexual intercourse might prove a guide, but the question is whether the Crown has proved that she was not consenting at the time the sexual intercourse occurred. [14] The Crown case is that because of her intoxication the complainant did not consent to either act of sexual intercourse. [15] In deciding whether you accept that the complainant was not consenting, you may consider the following: (i) Consent, or lack of consent, may be indicated by what the complainant said or did. In other words, the complainant's words, or actions, or both, may indicate whether there was consent. (ii) 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 that intercourse. There is no legal requirement for a person to physically resist before a jury can find that the person did not consent. (iii) The law provides that a person does not consent to sexual intercourse if the person consented while substantially intoxicated by alcohol. [16] If you are satisfied the complainant consented because she was substantially intoxicated by alcohol, it does not necessarily follow that you should be satisfied beyond reasonable doubt she did not consent. The essential matter the Crown must prove is that the complainant did not consent in the sense that she did not freely and voluntarily agree to the sexual intercourse because she was substantially intoxicated by alcohol. [17] To put it another way, the Crown will succeed if it proves beyond reasonable doubt that the complainant did not freely and voluntarily agree to the sexual intercourse with which the accused is charged, because her consent to the sexual intercourse was while she was substantially intoxicated by alcohol.
The trial judge said essentially the same things orally in his summing up, with a few further points made. The differences are not material and it is sufficient to focus on what was said in MFI7. During his summing up the judge also read out to the jury the whole of the MFI7 document, even though he had already covered all of the ground in the document in what he had said. Thus what is set out above was communicated to the jury three times.
The applicant makes no complaint with respect to [10]-[14] of the document, nor of paragraphs (i) and (ii) of [15]. But he submits that [15(iii)] is in error. His attack focused on the use of the word "while", saying that it suggests that if there is any temporal overlap between the substantial intoxication and the consent given then the law automatically renders the consent void.
The attack has force but not quite for the reason the applicant gives. Section 61HE(8)(a) provides that "it may be established that a person does not consent to a sexual activity … if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug". The provision itself thus uses the word "while". The problem is not so much with the use of that word but with the failure to take account of the significance of the statutory words "it may be established". His Honour said that "[t]he law provides that a person does not consent to sexual intercourse if the person consented while substantially intoxicated by alcohol". That is incorrect. The law, correctly understood, provides that in such circumstances it may be established that the person did not consent to sexual intercourse, taking account of all the circumstances. The statement wrongly suggests that if the jury found the person consented while substantially intoxicated then they are necessarily taken not to have consented.
However, something like that point is communicated by the next sentence, in [16], saying that "it does not necessarily follow that you should be satisfied beyond reasonable doubt she did not consent". The sentence does introduce a causal element into the inquiry, namely whether "the complainant consented because she was substantially intoxicated by alcohol" (emphasis added). The second sentence at [16] makes the same suggestion. As explained above at [15], such a causal inquiry is not necessary. In this matter that appears to reflect how the Crown put its case, and the applicant does not complain about these statements. What is relevant for current purposes is that the paragraph does correctly suggest that substantial intoxication does not necessarily mean that she did not consent, and that the essential matter is whether the complainant did not freely and voluntarily agree to the sexual intercourse.
However, the final paragraph of the discussion, [17], appears to repeat the error manifest in [15(iii)]. It again suggests that if the complainant's consent was given while she was substantially intoxicated by alcohol, then that suffices to establish that she did not freely and voluntarily agree to the sexual intercourse. Counsel for the Crown sought to put a different complexion on the use of the word "because" in the paragraph. In effect she argued that it simply again manifested a causal understanding of s 61HE(8), that is, suggesting that what was said or done to indicate consent may be undermined if it was caused by the complainant's substantial intoxication. Counsel submitted "that that was the ground upon which the Crown said, in this case, that the jury would not be satisfied that the consent that was said to have been given by the complainant was not true and voluntary". I accept that is a possible way to understand the sentence, in its context. However, in my view the more natural understanding of the word "because" in the sentence is that it is used in the sense of if her consent was while she was substantially intoxicated by alcohol, then that is enough to establish that the complainant did not freely and voluntarily agree. The paragraph does not suggest that intoxication is just a circumstance to take into account in assessing consent. It suggests that it is sufficient to establish a lack of consent.
In the court below counsel then appearing for the applicant had sought that [17] be excluded altogether from the written summary of elements. Counsel sought in the alternative that the word "will" in the first line be replaced with "may", so it read "the Crown may succeed". In the further alternative she sought that the words at the end of the paragraph, "while she was substantially intoxicated by alcohol", be replaced with the words "due to her substantial intoxication". I note that that suggestion would also have unnecessarily introduced the element of causation. In any case, his Honour rejected all of these submissions, considering that the paragraph was consistent with s 61HE(8).
As already indicated, it is important not to read a direction to a jury in isolation. At least [16] of the document was correct, leaving aside the causation issue. However, it was sandwiched between two paragraphs which were incorrect. Moreover, critically, [17] begins with the words "To put it another way". That phrase suggests that what is set out in the paragraph communicates a sufficient understanding of the issue.
The issue of whether or not the complainant consented to the two charged sexual activities was one of the two key issues in dispute in the trial, the other being the related issue of what the applicant understood about her claimed lack of consent. There was little doubt about the complainant's state of intoxication - an ambulance ended up being called. Paragraph 17 was at the end of the section of the document dealing with the consent issue. It would be a natural focus for the jury in reminding themselves what they had to consider.
Reading the relevant paragraphs of the document as a whole and in context, in my view there was a real chance that the jury would have been led to understand that it was enough to find that the complainant did not consent to the sexual activity in question if the jury found that she was substantially intoxicated. There was a real chance that the misdirections at [15(iii)] and [17] of MFI7 could have affected the jury verdict. That conclusion is reinforced by the fact that the errors were communicated three times to the jury: once in writing and twice orally.
The Crown sought to rely on the fact that the jury had not asked the trial judge for any clarification of the directions given, in contrast to what had occurred in Beattie. However, that argument does not advance matters. The fact that the jury did not ask a question on the point suggests that they did not think they needed clarification or further guidance. It does not throw light on what they understood from the directions given. They may have been confident in a misunderstanding.
The Crown also referred to parts of the closing addresses given by counsel for either side in the Court below. Counsel for the applicant below correctly said, more than once, that "people can and do consent to sexual activity when they are intoxicated", and stated that the fact of intoxication does not necessarily mean that the complainant did not consent. However, the relevant submission of the solicitor advocate appearing for the Crown below was itself somewhat problematic. She said: Now the law says - and his Honour is the judge of the law and will give you the appropriate directions - but the law says that if a person consents to sexual intercourse while they are substantially intoxicated, you can conclude that because the person was substantially intoxicated they did not actually in fact consent to the act of sexual intercourse, because they were not freely and voluntarily consenting. So I know I've used the word consent twice; the law uses the word consent twice. You would find the Crown says that [the complainant] was substantially intoxicated and because of the effects of that substantial intoxication, she did not actually consent to the acts of sexual intercourse, in the sense that she did not freely and voluntarily consent. In the circumstances which I've just said, which is that she was in this compromised state, that's why you would find that she wasn't freely and voluntarily consenting at the relevant time.
The first sentence quoted, taken by itself, tends to suggest that substantial intoxication is enough to establish a lack of consent. To some extent that error is ameliorated by what follows. Even so, it does not come close to overcoming the force of what was communicated three times by the trial judge. Nor did the correct submissions made on behalf of the applicant. As the solicitor advocate herself appropriately indicated, what the judge said on the law was the most important thing. Juries are assumed to have acted in accordance with the directions given to them by judges: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] and [31].
In my view a miscarriage of justice has been established.

Smee v R

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Legislation Cited (4)

Cases Cited (18)