Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sexual penetration without consent - Conviction on three counts - Whether honest and reasonable but mistaken belief open as a defence - Criminal Code s 24 - Whether trial judge erred in refusing to put the defence - Whether miscarriage of justice

Evidence - Honest and reasonable but mistaken belief - Criminal Code s 24 - Whether evidence of appellant sufficiently raised the issue - Whether trial judge should have put defence to jury

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32

1 BUSS JA: The issue in this appeal is whether the learned trial judge, O'Sullivan DCJ, erred in law in deciding not to put to the jury, in his summing up, the defence of honest and reasonable, but mistaken, belief under s 24 of the Criminal Code in relation to counts 3, 11 and 13. Those counts alleged aggravated sexual penetration. The appellant was convicted.

2 The material facts are set out in the reasons for decision of Miller JA and Murray AJA. I will not repeat them except to the extent necessary to explain my reasons.

Section 326 of the Criminal Code and the nature of consent

3 Section 326 of the Criminal Code creates the offence of aggravated sexual penetration without consent. It provides, relevantly:

A person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years.

4 Section 319(2), which also appears in Ch XXXI, states:

For the purposes of this Chapter -

(a) consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;

(b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;

(c) a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.

5 The words 'without ... consent' in s 326 refer to the subjective state of mind of the complainant when the penetration occurs. See R v I A Shaw [1996] 1 Qd R 641, 646 (Davies and McPherson JJA); R v Parsons [2000] QCA 136; [2001] 1 Qd R 655 [6] (de Jersey CJ, Davies JA, Helman J).

6 Section 24 of the Criminal Code reads, relevantly:

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

7 A defence under s 24, in the context of the offence of aggravated sexual penetration without consent, will not arise for determination unless:

(b) there is some evidence, fit for the jury's consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the complainant consented to the sexual penetration.

See Loveday v Ayre; Ex parte Ayre [1955] St R Qd 264, 267 - 268 (Philp J); R v Lyons (1987) 24 A Crim R 298, 299 (Williams J).

8 Where there is evidence, fit for the jury's consideration, of an honest and reasonable, but mistaken, belief by the accused, the burden of negativing the defence rests upon the prosecution. See CTM v The Queen [2008] HCA 25; (2008) 82 ALJR 978 [8], [35] (Gleeson CJ, Gummow, Crennan and Kiefel JJ); Loveday, (268) (Philp J), (271) (Stanley J); Lyons, (299).

9 The question for a trial judge in determining whether there is evidence, fit for the jury's consideration, of an honest and reasonable, but mistaken, belief is this: whether, on the version of events most favourable to the accused that is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused did not have an honest and reasonable, but mistaken, belief. Compare Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 334 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

10 The concept of honest and reasonable belief has subjective and objective elements. The subjective element is, ordinarily, peculiarly within the knowledge of the accused. The objective element must be capable of being measured against the evidence by the tribunal of fact. See CTM [8].

The learned trial judge's reasons for refusing to direct on s 24 of the Criminal Code

11 The appellant's trial counsel expressly requested the learned trial judge to direct the jury on s 24 of the Criminal Code. His Honour refused. His reasons were these:

As to the question of mistake again I think the evidence of the complainant is clear and the direction to the jury that they must be satisfied as to the evidence of the complainant is sufficient to deal with the issues of it being raised in the trial. I don't think that it's appropriate to take a view that mistake is an issue fairly open to the jury to consider (ts 508).

12 The learned trial judge's reasons for refusing to direct the jury on s 24 of the Criminal Code were, with respect, erroneous.

13 First, his Honour failed to apply the correct test, namely, whether, on the version of events most favourable to the appellant that is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that he did not have an honest and reasonable, but mistaken, belief at the material time that the complainant consented to the sexual penetration. His Honour referred to the complainant's evidence, but ignored the appellant's evidence.

14 Secondly, his Honour assumed that the jury would necessarily either accept or reject the complainant's evidence in all material respects. His Honour failed to appreciate that the jury may have accepted part, but not all, of the complainant's version of events and part, but not all, of the appellant's version. Compare R v Watt [2006] QCA 539 [25] (Keane JA, Williams and Jerrard JJA agreeing). Where a criminal trial is conducted before a judge and jury, the jury is, of course, the tribunal of fact. The jury is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ). Also see Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29]; R v Soloman [2006] QCA 244 [33] - [35]; R v SAX [2006] QCA 397 [18] - [23]; Watt [30].

15 As Keane JA noted in Watt, evidence by an accused that the complainant consented to sexual intercourse will usually convey that the accused's belief at the material time was that the complainant consented to intercourse [31]. His Honour then referred, with approval, to this passage from the reasons of Williams JA in R v Cutts [2005] QCA 306:

Where an accused person gives evidence admitting the sexual activity but contending that it was with the complainant's consent there is evidence that he believed the complainant to be consenting. If the jury rejects the correctness of the accused's evidence and accepts the evidence of the complainant that she was not consenting, that does not mean that the accused did not hold the belief to which he swore. In those circumstances the jury should go on and consider whether or not the belief was honestly and reasonably held, unless in the circumstances there is some good reason for not doing so. In a case such as that the rejection of the accused's evidence to the effect that the complainant was consenting does not necessarily amount to a rejection of the evidence that he held such a belief. This case is clearly distinguishable from that situation. The preference for the complainant's evidence and acceptance of it beyond reasonable doubt does not leave for consideration any evidence from the appellant as to his belief that the complainant was consenting. By his sworn testimony he has eschewed the holding of any belief that the complainant was consenting to the acts which the jury have found he committed. The only conclusion open as to the appellant's belief, consistent with his sworn testimony, is that he held none to the effect that the complainant was consenting to sexual activity with him [43].

Also see the similar observations in Cutts of Jerrard JA [75].

16 There is no inherent inconsistency between, on the one hand, an accused's evidence that the complainant consented to sexual intercourse or a jury's finding that the complainant did not consent, and, on the other, the jury concluding that it is not satisfied beyond reasonable doubt that the accused did not have an honest and reasonable, but mistaken, belief that the complainant consented. See Hunt v The Queen (Unreported, QCA, 71 of 1994, 22 June 1994) (Fitzgerald P).

17 This court must determine the issue in the appeal (that is, whether the learned trial judge erred in refusing to direct the jury on s 24 of the Criminal Code) by reference to the evidence adduced at the trial. It is not permissible to take into account the jury's verdict of guilty on any count of aggravated sexual penetration (or any finding of fact necessarily implicit in the verdict) unless the court is satisfied that the jury's consideration of that count and their verdict of guilty (or the necessarily implicit finding of fact) were not influenced or affected by the absence of a s 24 direction.

18 I agree with Miller JA, for the reasons he gives, that, on the version of events most favourable to the appellant which is suggested by material in the evidence, the defence under s 24 of the Criminal Code was reasonably open in relation to counts 3 and 11 (but not count 13), and that the learned trial judge should have directed the jury accordingly.

19 Also, I agree with Miller JA's comments concerning the learned trial judge's failure to identify the issues as they developed in the evidence and to put fairly before the jury the case which the appellant made.

20 Like Miller JA, I would grant leave to appeal, and I would allow the appeal in part. The appellant's convictions on counts 3 and 11 should be

quashed and a retrial ordered on those counts. The appeal should be dismissed to the extent it relates to the appellant's conviction on count 13.

21 I agree with Miller JA's observations in relation to the question of sentence.

22 There is, however, an additional point to be made. The learned trial judge, in sentencing the appellant on counts 3, 11 and 13, said:

In relation to each of the offences of aggravated sexual penetration; they are the offences the subject of counts 3 and 11 and 13; you should serve terms of imprisonment of four years and 10 months. I would have imposed terms of seven years, prior to the amendments to the Act. There should be a term of four years and 10 months in respect of each of those offences (ts 529).

23 This passage indicates that the learned trial judge would have sentenced the appellant to 7 years immediate imprisonment on each of counts 3, 11 and 13 under the law as it stood prior to the commencement of the transitional provisions introduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA). His Honour was required by the transitional provisions to reduce each of those terms of imprisonment by one-third. Plainly, he has made an arithmetical miscalculation. Each term of imprisonment should have been reduced to 4 years and 8 months, not 4 years and 10 months. This miscalculation was not referred to by counsel who appeared before his Honour, or by counsel who appeared before this court. The parties should be heard as to whether the error should be corrected by this court or be the subject of an application to his Honour under s 37 of the Sentencing Act 1995 (WA).

24 MILLER JA: The appellant was charged on an indictment which contained 13 counts, being aggravated burglary (one count), aggravated sexual penetration (six counts), deprivation of liberty (two counts), threatening to kill (one count), aggravated assault occasioning bodily harm (one count), robbery (one count) and attempted aggravated sexual penetration (one count).

25 The appellant was tried before O'Sullivan DCJ and a jury in the District Court at Albany and convicted of the count of aggravated burglary, of three counts of aggravated sexual penetration, of the two counts of deprivation of liberty, of aggravated assault occasioning bodily harm and robbery. He was acquitted of two counts of aggravated sexual penetration and the count of attempted aggravated sexual penetration.

The jury was unable to reach a verdict in relation to the count of threatening to kill.

26 The counts of aggravated sexual penetration upon which the appellant was convicted were counts 3, 11 and 13. Those upon which he was acquitted were counts 2, 6 and 10.

27 The appellant was sentenced to an aggregate term of imprisonment of 9 years 6 months with an order for eligibility for parole. Each of the convictions for aggravated sexual penetration resulted in a sentence of 4 years 10 months' imprisonment.

28 The appellant seeks leave to appeal from his convictions for aggravated sexual penetration. The question of leave to appeal has been referred to the court to be determined at the hearing of the appeal.

29 There is one ground of appeal and it is expressed in the following terms:

1. The learned trial Judge's discretion miscarried when he determined not to leave to the jury a defence that, in all the circumstances, was available to the Appellant, such that there was a miscarriage of justice;

1. His Honour did not direct the jury on the defence of 'mistake' contained in Section 24 of the Criminal Code;
2. when invited to re-direct, the trial Judge determined not to;
3. there was testimony from both the complainant and the Appellant that required a direction as to Section 24;
4. His Honour's failure to re-direct the jury on Section 24 resulted in a miscarriage of justice.

30 The written submissions which formed part of the appellant's case (Supreme Court (Court of Appeal) Rules 2005 (WA), r 32) contend that the defence of honest and reasonable, but mistaken, belief ought to have been put to the jury by the trial judge in relation to each of counts 3, 11 and 13 on the indictment.

31 At the conclusion of the summing up to the jury, the trial judge was asked to redirect the jury in relation to the applicability of the defence of honest and reasonable, but mistaken, belief. Counsel for the appellant made specific reference to count 3 on the indictment and general reference to 'the counts that occurred finally at [the complainant's house]' (by which I assume he meant counts 11 and 13). Counsel suggested that although there was no contention that the complainant had given 'express consent' to the acts of intercourse which related to counts 3, 11 and 13, there was no opposition to it. Accordingly, he submitted, it would be necessary to give the jury a direction in accordance with s 24 of the Criminal Code.

32 Section 24, at the relevant time, provided as follows:

A person who does ... an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act ... to any greater extent than if the real state of things had been such as he believed to exist ...

33 Counsel for the respondent submitted that there was no necessity to give such a direction. He referred to the evidence of the complainant and summarised that evidence as being that the complainant had 'said no on each occasion, including the last occasion'. Counsel for the respondent submitted that, in those circumstances, a direction was not required.

34 The trial judge declined to redirect the jury. He said:

As to the question of mistake again I think the evidence of the complainant is clear and the direction to the jury that they must be satisfied as to the evidence of the complainant is sufficient to deal with the issues of it being raised in the trial. I don't think that it's appropriate to take a view that mistake is an issue fairly open to the jury to consider.

35 I should point out that the trial judge appears to have been concerned only with the question whether the evidence of the complainant was sufficient to raise the issue of honest and reasonable, but mistaken, belief. In this respect, his Honour overlooked the fact that the question was whether the defence case, taken at its highest, sufficiently raised the issue to necessitate that the defence of honest and reasonable, but mistaken, belief should be put. If it did, it was necessary for the trial judge to put the defence.

36 In Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158 Gibbs CJ, Wilson, Brennan and Deane JJ said (in the context of the issue of provocation) at 161:

The question on which the learned members of the Court of Criminal Appeal disagreed was whether the learned trial judge erred in failing to direct the jury on the issue of provocation. Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration.

It has been repeatedly held that if there is material on which a jury, acting reasonably, could find manslaughter as a result of provocation, it is the duty of the trial judge to put the issue to the jury, even if there is no suggestion at the trial that the issue should be put to the jury (Parker at 681; Pemble v R [1971] HCA 20; (1971) 124 CLR 107 at 117-18).

38 In Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88, Gibbs CJ said at 118:

[A] judge, if in any doubt as to whether there is sufficient material to raise such an issue, should leave the issue to the jury.

39 In Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 the court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said at 334 (in the context of the defence of provocation):

The question for a trial judge is whether there is material in the evidence which is 'capable of constituting provocation'. The result is that the question for a trial judge under s 160(3) [Criminal Code (Tas)] can be summarized as being whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.

(See also Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 per McHugh J at [83].)

40 The complainant gave evidence that she was 24 years of age at the time of trial (27 August 2007). She was the mother of two children aged 5 and 2 1/2 years, both of whom were the children of the appellant. She had met the appellant at aged 17 years and she been in a relationship with him from the age of about 18 years. That relationship involved a good deal of domestic violence, including both physical and emotional abuse. The relationship ended early in 2006 at a time at which the complainant and the appellant were living together. The complainant asked the appellant to leave, but he would not do so. In April 2006, she was successful in obtaining a Homeswest house and, at or about that time, she moved into it.

41 The appellant was invited by the complainant from time to time to her new house, for the specific purpose of seeing the children. There were further incidents of abuse on the occasions he was there. On occasion, he stayed at the house, because 'he wouldn't leave'.

42 The complainant said that in order to keep the appellant away from the house, she ended up getting a restraining order. She did this during 2006. The order was made final in June or July of that year.

43 The appellant continued to come around to the complainant's house. It appears that he came with his mother to collect the children. He was then living with his mother, who was in turn living with his sister.

44 Although forbidden by the restraining order to contact the complainant, the appellant was in the habit of ringing her to arrange to see the children.

45 On the morning of 18 August 2006, the appellant rang the complainant to ascertain what she was doing that day. He requested that arrangements be made so that he could see the children. According to the complainant, an arrangement had already been made with the appellant's sister, [B]. That arrangement was that [B] would pick up the children at 6.00 pm on that evening. The complainant said that she told the appellant this fact and, in due course, [B] did pick up the children, leaving the complainant at home alone.

46 The complainant testified that, during the course of the evening, the appellant came to her house. She said it was between 8.30 and 9.00 pm. He had telephoned to say ask whether he could come over and pick up his son's pillow. The complainant told him that he could do so.

47 The complainant said that she was lying down in bed watching television when she heard a knock on her window. She did nothing, but she heard the appellant's voice. He said, 'It's me'. He asked to be let in, but the complainant did not let him in. She remained in her bedroom. She said she had an uneasy feeling about the appellant. He sounded as if he was drunk.

48 The complainant then heard the back flywire door and the glass door being opened. She thought nothing of this at first because she thought she had locked the door. However, when she heard the glass door being opened, she got up to get her mobile phone, intending to ring the police. She said that the appellant was, however, already inside the house.

49 The complainant testified that she was lying in her bed when the appellant came in. He went through her drawers and her cupboards and then he asked her for sex. The complainant said that she said, 'No', but the appellant said that if (she) 'wouldn't give it to him he'd just get it anyway'.

50 The complainant said that the appellant then pulled back the doona, grabbed her by the leg and tried to take off her pants. He was able to do this, and she said that he then got onto the bed and 'he forced himself on me'. When asked to elaborate, she said, 'We had unconsented sex'. She said that she had said, 'No' to him and that she not want to have sex with him. She said that the appellant said, 'He didn't care because he'd be going to gaol anyway'.

51 The complainant said that, after intercourse, she went to the toilet to wipe herself and then returned to the bedroom, where she got dressed, lay down and began to watch television again. The appellant was in the lounge room using her telephone to make a call.

52 The complainant said that, minutes later, the appellant came into her room and lay on the other side of the bed. She said that he told her he wanted to have sex again. She said that she said, 'No', but he removed her pants and put his penis in her vagina. She was lying on her side and he was behind her. When asked whether she wanted this to happen, the complainant said, 'No'. She could not recall whether she had told him 'No' during the time he was having sex with her.

53 The complainant said that, after sex, she stayed on the bed and she went to sleep. She did not awaken until 8.00 am the following morning. She said that the appellant was still there, lying on the other side of the bed. She said that, in the morning, the appellant telephoned his mother to see if the kids were there and he asked the complainant to go with him to collect the children. She refused to do so and she said that he threatened her with part of the vacuum cleaner and made her get into his vehicle. According to the complainant, he held part of the vacuum cleaner in the air and said to her to 'get in the fucking car or [I'll] bash [you] with it'.

54 The complainant got into the appellant's vehicle and he drove to his mother's house. He told her not to get out of the vehicle. She was frightened and she did not get out of the vehicle. She said she was afraid to do so.

55 The complainant said that the appellant then drove the vehicle to a bus stop so that his sister could put his niece on the bus (the niece and sister presumably being in the vehicle) and then the appellant drove back to his mother's house. The children were there and the appellant asked his son to get into the vehicle. He did so and the vehicle was then driven along Mercer Road, Albany. The complainant asked the appellant not to 'do this', and she said that he then turned around and went back to his mother's house, and dropped off the boy. It was then about 9.15 am.

56 The complainant said that the appellant then headed back 'towards Chester Park [sic Pass] Road' and, in the course of driving, he said, 'You're going to get a fucking hiding now'. She said that he was really aggressive and threatening towards her. He said at one stage that he was going to put her into a head-on collision, and accelerated the vehicle to 140 km per hour. He drove on to Simpson Road, which was a unsealed road, and in the bush. The vehicle came to a stop and the complainant got out of the car to go to the toilet. She said that the appellant then reversed the car, or turned it round, and accelerated towards her. She was forced to jump back towards the bush to get out of the way. He handcuffed the complainant to a tree and said to her, 'Are you ready to die?' He held a log above his head and less than a metre from her. He went to swing the log, but then he stopped. He left and then came back with a tyre lever. He threatened to hit the complainant on the head with it, asking her if she had ever lied to him about sleeping with someone.

57 Eventually, the handcuffs were removed and the complainant was driven back into town. The complainant said that the appellant turned off on a dirt road into a cul-de-sac, where he stopped the vehicle and told her that he 'wanted to have a fuck'. She said that he got out of the car, came around to her side of the vehicle, where he opened the door and asked for oral sex. She said that she refused. She said that he undid her seatbelt and swung her legs so they were both outside of the vehicle. He ripped her pants off and tried to force himself on her. She resisted, but he was able to have intercourse with her. She said that she told him that 'this is rape and you're going to get chucked in gaol for this', but he did not stop and he said he was 'going to get it anyway no matter what'.

58 The complainant said that the appellant then drove her back to town and back to her house, where she got her wallet, which contained her key card. She did this because the appellant wanted drugs. She thought that if she gave him $50 to 'go and get a shot', he would leave her alone. She withdrew $50 and, according to her testimony, the appellant obtained and injected drugs. She was then driven out towards Frenchman's Bay, at which time she was getting tired. It was about 1.00 pm. When the vehicle stopped in a cul-de-sac, the complainant jumped out of the vehicle and ran into the bush. She said that the appellant looked for her and called out to her, but eventually drove away. She said that she was successful in stopping a vehicle and getting the driver to take her to the police station. However, on the way, the appellant came up behind the vehicle and cut in front of it, causing it to stop. The complainant said that the appellant demanded that she get out of the vehicle and if she did not do so, she would be dragged out by the hair. She said that she ended up getting back into the appellant's vehicle, where the appellant told her she was lying and punched her in the face. She was punched in the right cheek. It caused what she described as a 'big black eye'.

59 The complainant said that the appellant then drove towards Mount Barker. The complainant was able to speak to her mother and also to a friend (on her mobile phone) At Mount Barker, the appellant asked the complainant for her key card and PIN, threatening that he would punch her unless she gave it to him. She said that she gave him her key card and the PIN, and the appellant then drove to the back of the Porongurups, heading back towards Albany. He stopped at a shop, bought some cigarettes and a Coke, drove to Albany, then went to one of his 'drug friends' and got 'half a weight'. He took drugs and she also participated in drug-taking. The complainant said that she was then at Frenchman's Bay, but the appellant drove to The Gap, where they started drinking. They then headed back into town, and whilst doing so, the complainant saw lights from a police car behind them. The police car had a siren on.

60 The complainant said the appellant accelerated, heading out of town on the wrong side of the road, and 'over 100 ks'. Apparently, the appellant was able to evade the police and get back to his sister [B]'s house.

61 The complainant said that, at [B]'s house, she borrowed some of [B]'s clothing. It was then past midnight and into 20 August. She lay down in the lounge room on a mattress which was on the floor. She said that the appellant then came 'insinuating that he wanted to have sex again'.

62 The complainant said that she said, 'No', but the appellant said that 'he was going to get it either way'. She said that he tried to take her pants off, but he couldn't do so, so she took them off. Once this had happened, he had sex with her, ejaculating inside her. She said that she then wiped herself down and went to lie back down again. She went to sleep and awoke in the morning. She said that the appellant was still there and he would not let her go.

63 The complainant said that the appellant wanted to leave [B]'s house and she was forced to go with him. They went back to her house, where she said the appellant 'started to stress out'. She said that he knew he had 'nowhere to run' from the police. They arrived about three hours later.

64 She said that, before they arrived, there was another incident of sexual penetration. She described it in the following terms:

Did anything else happen in the house before the police arrived?---Yes.

What's that?---He wanted to have sex again.

He wanted to have sex again?---Yes.

Did he say that to you?---Yes.

What words did he use, do you recall?---He wanted to have a fuck before the police got there.

Before the police go there?---Yes.

Did you respond to that?---Yes.

What did you say?---I said, no, I didn't want to get caught with my pants down.

Did he say anything in reply to that?---He just said, 'I'm going to get one more before the police get here.'

What happened then?---I just walked into the room and I told him to hurry up.

Did you want to have sex with him?---No.

Did you have sex?---Yes.

Again I'm going to have to ask you to describe it please. How did that happen?---I lay down on the bed diagonally on my stomach. My pants were down and he entered me from behind with his penis in my vagina.

Okay?---And we were having sex and then he tried to have anal.

What do you mean, he tried to have anal?---Well, he tried to put it in.

To where?---To my bum hole.

Did he do that?---No, because I bit his hand.

How long did he try for?---For a minute or so.

I think you said you bit his hand?---Yes.

Did you say anything to him?---I said, 'If you don't do this, I won't tell the police about the unconsensual sex' and he stopped.

He stopped trying to put it into your anus?---Yes.

Once he stopped trying to put it in, what did he do?---He put it back into my vagina.

How long did that third part, if you like, go on for?---Not long.

What made it stop?---He ejaculated.

Once he ejaculated, what happened to him?---He got off and I got up and wiped myself.

Once you had wiped yourself, what did you do?---I walked back into the bedroom and put my knickers and pants back on.

65 The complainant said that, shortly after this incident, the appellant grabbed a knife and said that he was going to kill himself. Shortly afterwards, the police arrived and the appellant was taken away in a police vehicle.

66 It is now convenient to make reference to the way in which the prosecution opened the case. The prosecutor told the jury that the appellant's initial entry into the complainant's house constituted count 1 on the indictment (the aggravated burglary of which the appellant was convicted). It was put that the sexual penetration that followed immediately after entry was count 2 (aggravated sexual penetration in respect of which the appellant was found not guilty), and that the sexual penetration which occurred shortly thereafter was count 3 (aggravated sexual penetration of which the appellant was found guilty). Each of counts 1, 2 and 3 were alleged to have occurred on 18 August 2006.

67 The offences which were alleged to have occurred on 19 August 2006 began with the offence of deprivation of liberty. This was the forcing of the complainant into the appellant's vehicle, when he held up a vacuum cleaner part and threatened her. The appellant was convicted of this offence of deprivation of liberty.

68 Count 5 on the indictment was an offence of making a threat to unlawfully kill the complainant. The prosecution contended that this offence was committed when the appellant threatened to kill the complainant after handcuffing her to a tree and threatening her with a metal tyre lever. The jury was unable to reach a verdict on this count.

69 Count 6 on the indictment, which was aggravated sexual penetration, was contended to be the incident in the secluded bush area, where the complainant said the appellant had swung her legs around out of the vehicle and he had sexually penetrated her. He was found not guilty on this count.

70 Count 7 on the indictment was a further count of deprivation of liberty in respect of which the appellant was convicted. This was said to be the incident in which the complainant had been forced into the appellant's vehicle after he had cut off the car which had picked her up from the bush area. The appellant was convicted on this count.

71 Count 8 on the indictment was a count of aggravated assault occasioning bodily harm. The appellant was convicted on this count. It was constituted by the appellant punching the complainant to the side of the face and causing bruising to her eye.

72 Count 9 on the indictment was a count of robbery. The appellant was convicted of it. It was constituted by the stealing with violence of the complainant's key card which, with her PIN, he used to make some purchases and withdraw money.

73 The next set of offences occurred on 20 August 2006. Count 10 on the indictment was a count of aggravated sexual penetration. This was said to be the first incident of sexual intercourse on the morning of 20 August. The appellant was acquitted of this charge.

74 Count 11 was another count of aggravated sexual penetration. It was said to be the second incident of sexual penetration just prior to the arrival of the police. In fact, counts 11, 12 and 13 are all to be considered together. They were said to be constituted by sexual penetration (count 11), attempted aggravated sexual penetration (anal penetration) (count 12) and aggravated sexual penetration (count 13). The appellant was convicted of counts 11 and 13, but found not guilty on count 12.

The convictions for aggravated sexual penetration (counts 3, 11 and 13)

75 The complainant's testimony in relation to count 3 is difficult to read in isolation. However, as the appellant was acquitted on count 2, it must be so read. What she said was:

Once he lay down on the bed next to you did he say anything?---He said he wanted to have sex again.

Did you say anything in reply to that?---Yes. I said no.

What happened then?---He removed my pants again.

Did you do anything while he was removing your pants?---I can't recall now.

Once he removed your pants what happened?---He put his penis in my vagina again.

...

Did you want that to happen?---No.

Other than saying at the beginning when he asked you for sex again I think you said no, did you say that to him at all again?---Yes.

Is that while he was having sex or not?---I don't remember.

Do you recall if he spoke during this second act of sex?---No.

Did you?---I can't recall.

76 When the complainant was cross-examined in relation to this incident, it became apparent that the appellant's defence was that he had, in fact, had sexual intercourse with the complainant on this occasion, although he contended that it was with consent. The following questions illustrate that fact:

I'm about to ask you some questions, [the complainant], regarding this episode of sexual intercourse but before I do, I put it to you that the only time you had sex with the accused, or he had sex with you, on that Friday night was this one that we're now going to go through?---No.

...

I put it to you, [the complainant], that you consented to that?---No.

You didn't say no. Is that right?---No.

77 I have already quoted the passage in which the complainant testified about the circumstances of counts 11, 12 and 13.

78 The complainant gave evidence that there were two acts of intercourse. The act of intercourse was said to have begun by the appellant entering her from behind with his penis in her vagina. She said that he then 'Tried to have anal', but he did not do so because she bit his hand. She said that he then 'Put it back into my vagina'.

79 When the complainant was cross-examined in relation to counts 11, 12 and 13, it was put to her that the appellant had not said 'I want a fuck', but had said that he wanted sex one more time before the police came. A statement made by the complainant was put to her to refresh her memory and she agreed that she had been mistaken in her earlier evidence. The following passage then occurred:

The accused said to you, I put it to you, 'I'll be quick'?---Yes.

Do you agree with that?---Yes.

Do you recollect what your response was?---'Hurry up.'

'Come on then, hurry the fuck up.' Does that refresh your memory?---Yes.

That's what you said, wasn't it?---Yes.

And you walked into the bedroom?---Yes.

Do you recollect that? You pulled your pants down. Is that right?---Yes.

80 Cross-examining counsel put it to the complainant that there was only one act of sexual intercourse. She said she did not remember. It was put to her that the appellant had not attempted to penetrate her anus with his penis at all. She denied this and said that he had.

81 The appellant gave evidence that, in August 2006, he was residing at a house occupied by his mother and his sisters. One of his sisters was [B]. He gave evidence that he had a relationship with the complainant over a period of six years. During the time they had been together, they used drugs. There were arguments in which each accused the other of seeing other people. The appellant said that the complainant also brought up his previous relationships and this caused further arguments. From time to time they would separate, but then get back together again.

82 The appellant gave evidence that he had sexual relations with the complainant on various occasions. He agreed that the complainant had applied for and obtained a restraining order. He said he did not oppose it. Despite the restraining order, he and the complainant continued to have sexual relations. He said she consented to sexual intercourse with him, but agreed that there were occasions upon which she 'submitted to having sex ... because it was easier to get it over and done with'. He said that, when they took drugs, they would often have multiple sexual encounters.

83 The appellant said that, despite the existence of the restraining order, he continued to have contact with the complainant. He had contact through phone calls, by going past her place to see how the kids were doing and 'stuff like that'. He said that, from time to time, she would call him and he would call her. At times, she would drop the children off. From time to time, he went to the house where the complainant was living. Prior to April 2006, he stayed there on occasions for 'more than a few days'.

84 On 18 August 2006, the appellant said that he had a telephone conversation with the complainant. He called her and asked if it was all right for him to come over to see her. He said that she agreed and he went to the house, where he knocked on her window and said that it was him. The appellant said that the complainant told him she would get up and open the door, and so he waited for her to do that. He said that he then walked into the house after the complainant. He followed her into her room, where he asked if he could use her telephone. He said that she gave him her telephone and he made a few calls. He was consuming alcohol and he was 'a bit intoxicated'. The children were at his sister's house.

85 The appellant said that the complainant came and sat in the lounge room on a couch opposite him and they watched television. She then walked back into her room. He followed her a short time later and lay down beside her on a bed. He was asked what happened and he said:

So you lie down on the bed. What happens then?---I laid down behind her for about 10 or so minutes and then after that happened I pulled her pants down from behind and she didn't say no or didn't make no struggle or anything and I entered her vagina from behind with my penis and had sexual intercourse with her until ejaculation.

And then what?---Then I fell asleep. I laid back and fell asleep.

86 The appellant said that, when he awoke the following morning, the complainant was up and in the lounge room. He said that she had access to her mobile phone.

87 The appellant denied that there was any more than one incident of sexual intercourse. He denied that the complainant had said that she did not want sex. He denied that he had said he was 'going to gaol anyway' and that he might as well have sex.

88 The appellant gave evidence that he asked the complainant if she would come for a ride with him and see the children. He said that she went with him and they drove past his mother's house, but the children were not there. He said that they kept driving around. He denied that he had forced her in any way to go with him. He said that they drove to various places where he thought the children might have been, and then he received a telephone call from a drug dealer. He said that they 'ended going past a few sites, the gap and the wind farm in general'. He denied that, at any time, he said to the complainant that he would not let her go. He said that he drove back to the complainant's house and saw the complainant's mother there. There was a dispute with her about the appellant's driving. Then, the appellant drove back down the Chester Pass Road. He called his dealer in Mount Barker and made arrangements to collect drugs from him. He said that he told the complainant that he could not afford to drive along Albany Highway in case the police saw him, and accordingly he drove to Mount Barker 'out past the Porongurups through the Porongurups'.

89 The appellant denied that he had handcuffed the complainant to a tree. He denied that he had travelled at 140 km per hour, although he agreed to doing 120 km per hour. He denied that he said he would force the vehicle into a head-on collision. The appellant denied that he had ever threatened to strike the complainant with a stick.

90 The appellant said that, during the time he was driving with the complainant, the complainant received a text message from her mother saying that the police were looking for the appellant. The appellant said that he went to the wind farm, where he pulled up. He was arguing with the complainant. He told her to get out of the vehicle and said that he was going to 'smash the car up', and then drove off, leaving her. He denied that he had said he 'wanted a fuck' and denied asking her for oral sex, or having sexual intercourse with her at the wind farm. He said that, after driving away, he had a few cigarettes and then returned where he found the complainant in a cul-de-sac area. He had only been away about 10 minutes. He agreed that he saw somebody he knew working on the roadside, but denied the complainant's assertion that he had given her a jacket to cover herself up as he went past that person.

91 The appellant gave evidence that they drove back to the complainant's house, where she picked up a wallet. They then withdrew money, went to a pharmacy where they bought syringes and then went to the toilets of Hungry Jack's, where water was put into the syringes. He said that the complainant and he injected drugs.

92 The appellant said that, at around 12 noon, he went to Frenchman's Bay Road, which took him back to the wind farm.

93 The appellant's evidence at this point is somewhat confusing, because he had previously spoken of leaving the complainant behind at the wind farm. He gave evidence again about the matter, indicating that he had gone back looking for her. He saw a car slowly pulling away and he pulled in front of that car. He said he told the driver that he wanted '[his] woman' and the complainant got out of the vehicle and got into his vehicle. He said that he then drove away. He could see a 'bloke' who had been in the other vehicle on the phone and he thought that perhaps he was calling the police. He said that he drove to Mount Barker (although it is not clear whether this was a second occasion or whether he was talking about the first occasion). He admitted that he became involved in a high-speed police chase and said that he drove back to his sister [B]'s house. There, he and the complainant got into the house through the lounge room window. The complainant showered and changed into fresh clothing, and then they played computer games and listened to some music which had been downloaded from the computer. What next happened, he put in the following way:

Then I walked back into the lounge room where she was laying watching TV and asked her for sex.

What happened?---She didn't say no, sir. She just told me, yeah, to hurry up.

This incident was the basis upon which count 10 on the indictment was charged. The appellant was acquitted in relation to that charge.

94 The appellant said that, after he had had sex with the complainant, they both slept at his sister's house. The following morning, his sister [B] returned with the children. The appellant and the complainant then went to the complainant's house. He said that, there, she started cleaning the house. He was worried about the high-speed chase that had taken place, and he asked her for sex. He put it this way:

Why did you do that?---I just thought that the police would most likely be there soon and, like before anything had happened or anything, you know, have sex.

How did that happen? Tell me how did that come about?---I can't recollect, boss - I mean, sir. I just asked her for sex and she told me to hurry up and we walked into the room.

...

Now when you had sexual intercourse with [the complainant] at her house in this occasion how did that happen?---She walked in - we walked into the room and she laid on her stomach, pulled her pants down just below her backside on the back of her hamstring sort of thing and I pulled my pants down just below - just down a bit and into her vagina from behind, like from on top of her but she was laying on her stomach, yeah.

[The complainant] gave evidence that you tried to penetrate her anus with your penis. Do you recollect her saying that?---Yes, sir.

Did that happen?---No, sir.

The appellant said that, some time after this incident, the police arrived.

95 It is apparent from the appellant's evidence that he was contending that there was only one incident of sexual penetration and not three incidents (two of sexual penetration and one of attempted penetration), as the prosecution alleged in counts 11, 12 and 13. The appellant said nothing about any second or continuing act of penetration.

96 The appellant was cross-examined in relation to the act of sexual penetration which was said to constitute count 3. He said this was the only act of sexual intercourse on the night of 18 August. It was put to him that he had had sex twice that night, but he denied it:

And you actually had sex twice that night didn't you?---No sir. I did not.

97 The appellant was also cross-examined in relation to counts 11, 12 and 13. The appellant was adamant that there was only one act of sexual intercourse:

Okay. So there was only the one time you were waiting for the police to arrive so you had sex with her on that day. Is that right?---Yes, sir.

While you were waiting for the police to arrive?---Yes, sir.

You tried to put it in her bottom, didn't you?---No, not deliberately, sir.

Not deliberately?---No.

Could have done it by accident?---It was an accident, yes, sir.

She bit you on the hand so you'd stopped doing it, didn't she?---Not that I can remember, no. I don't recall a biting on the hand, sir.

She could have bit you on the hand then?---She could have but I don't remember, sir. I don't remember her biting me at all.

You were having sex against her will, weren't you?---No, sir.

She'd told you no?---No.

As she had on every other occasion before it?---No, sir.

Did the evidence raise the defence of 'mistake'?

98 The trial judge did not suggest to the jury that they should consider the question of honest and reasonable, but mistaken, belief in relation to any of the counts of sexual penetration without consent. As I have pointed out, his Honour was asked to direct the jury on that issue, but he declined to do so. In ruling on the matter, the trial judge was concerned only with the question of the complainant's evidence.

99 However, the question is whether, on the version of events most favourable to the appellant which is suggested by the material and the evidence, the defence was reasonably open: Stingel at 334.

100 On the version of the evidence most favourable to the appellant, there was, in my opinion, a proper foundation for the defence of honest and reasonable, but mistaken, belief. This was not a case in which there was a clear conflict between the complainant and the appellant as to whether express consent had been given. Although the complainant said that she had said 'No', the appellant did not say at any stage that she had said 'Yes', but was contending that there had simply been sexual relations between them in circumstances in which 'she didn't say "No"', or 'didn't make no struggle or anything' (count 3) and that she had just 'told [him] to hurry up' (count 11). The case is therefore to be contrasted with cases such as Braithwaite v The Queen (Unreported, WASCA, 25 September 1995, Library No 950511) where Franklyn J (with whom Pidgeon and Anderson JJ agreed) made it clear that, in such a case, there will be no room for the defence of honest and reasonable, but mistaken, belief. His Honour said, at 8 - 9:

In my opinion the evidence in the present case does not in any way give rise to the defence that the appellant had an honest and reasonable but mistaken belief that the complainant was consenting to the acts of sexual intercourse the subject of the offences. His evidence was of an open and express consent followed by unequivocal conduct confirming that consent. The complainant's evidence was of an unequivocal rejection of his request for sex, of her unwillingness to have sex, followed by his threat of violence and persistence with the sexual assaults despite her objections. In determining whether the 'defence' has been raised in the sense referred to by Moffitt J in R v Taylor (supra) it is necessary to consider her evidence in the light of the appellant's sworn version. In my opinion there was no evidence upon which the jury could reasonably conclude that it had a reasonable doubt as to whether the appellant subjectively held an honest belief, based on reasonable grounds, that the complainant was consenting to the sexual acts performed by him on her.

101 Because in the present case the appellant's evidence suggested that he believed the complainant to be consenting to the sexual acts (or at least not indicating lack of consent) in relation to counts 3 and 11, there was a sufficient foundation for the defence of honest and reasonable, but mistaken, belief to be put within the meaning of s 24 of the Criminal Code. The trial judge was urged to give the direction, but he declined to do so. I consider that a substantial miscarriage of justice occurred in respect of the counts I have mentioned.

102 In my opinion, only counts 3 and 11 called for a s 24 direction. It was only in relation to those counts that the appellant laid a foundation for the defence. He clearly did so in relation to count 3, because he said, 'She didn't say "No" or didn't make no struggle or anything'. He also did so in relation to count 11, because he said, 'I just asked her for sex and she told me to hurry up and walked into the room ... She laid on her stomach, pulled her pants down ... and [went] into her vagina from behind'.

103 However, as I have pointed out, the appellant contended that there was only the one act on the final occasion. He also said that to the extent that his penis may have touched the complainant's anal area, that was 'an accident'.

104 It follows that the jury convicted the appellant on count 13, despite his contention that there had been no act of sexual penetration.

105 The sexual penetration which was the basis of count 13 on the indictment was an alleged continuation of the sexual penetration which constituted count 11. It was interrupted by the alleged attempted anal penetration. On the complainant's evidence it would appear that there was essentially one act of sexual intercourse which was interrupted. Nevertheless, on her evidence it did constitute two separate acts of vaginal penetration by an attempted anal penetration and then a continued vaginal penetration.

106 The ground of appeal is in general terms and contends that a direction on mistake was called for in the circumstances of the case. It does not specify in relation to which counts, although the appellant's case clearly enough identifies counts 3, 11 and 13, contending that 'there was ample evidence from both the appellant and the complainant that raised the defence of mistake concerning counts 3, 11 and 13' (appellant's case par 38).

107 There was, however, no evidence which laid a foundation for the defence of mistake in relation to count 13.

108 The grounds of appeal do not attack the content of the trial judge's direction other than by reason of his failure to direct on the issue of mistake.

109 However, it must be said that when the trial judge summed up to the jury in relation to each count, he appears to have put only the prosecution case. He said, in relation to the defence submissions:

You have heard the submissions of counsel and I don't think there's any need for me to canvass them again in any detail, members of the jury. For the accused it is pointed out that the submission is made to you that the complainant ... had many opportunities to get away, to sound the alarm before she in fact did, in particular you are reminded of the evidence relating to the visit to the Bell's liquor store down here when the accused went into the liquor store entirely out of sight of [the complainant] in the car for some time, perhaps five minutes, and she still didn't take the opportunity to go to the police station which was not far away.

Against that background in the context of those facts and others the submission is made to you that this was not a case of her being detained against her will nor was it a case of any sexual penetration occurring without consent. [The complainant] was a free agent in her dealings with the accused over this period of time an accused with whom she had had an ongoing relationship and by whom she had had two children.

110 The trial judge was obliged to identify for the jury the issues which were raised by the evidence. They included the evidence given by the appellant.

111 In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ said at [41]:

Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes.

112 No attempt was made to identify the issues as they developed in the evidence and the trial judge did not 'put fairly before the jury the case which the accused [made]': RPS at [41]. Had this been done, the trial judge might have appreciated that the appellant did lay a foundation for the defence of mistake in relation to counts 3 and 11 on the indictment.

113 In my opinion, leave to appeal should be granted and the appeal should be allowed in part. The convictions of the appellant on counts 3 and 11 on the indictment should be quashed and a retrial should be ordered in relation to each of those counts. For the reasons that I have given, the appeal should not be allowed in relation to the conviction on count 13 on the indictment.

114 This brings me to the question of sentence. When the trial judge sentenced the appellant, he imposed sentences of imprisonment of 4 years 10 months on each of counts 3, 11 and 13. They were ordered to be served concurrently with each other. As Buss JA has pointed out, the sentences of 4 years 10 months resulted from an arithmetical error. The sentences should have been 4 years 8 months in each case.

115 There is also a question whether the court should resentence the appellant, having regard to the fact that the convictions on counts 3 and 11 and the sentences imposed on those counts have been quashed. This raises the question of totality and also raises the question whether a sentence of 4 years 10 months was appropriate in all the circumstances for

the conviction on count 13. Further submissions should be heard on this issue.

116 MURRAY AJA: In this matter I have been greatly assisted by having had access to the reasons of Miller JA in draft form. His Honour's careful consideration of the evidence relieves me of the need to do more than state, in summary form, my understanding of the relevant portions of the evidence bearing upon the issue raised by the ground of appeal.

117 That ground has been set out by Miller JA. As his Honour observes, although generally expressed, it was made clear, upon the hearing of the appeal, that the direction sought relates to each of counts 3, 11 and 13. Miller JA referred to the full Court of Appeal the question of the grant of leave upon the ground advanced, that question to be argued upon the hearing of the appeal.

118 In short, the contention is that the trial judge erred in not directing the jury about the defence of 'mistake' arising pursuant to s 24 of the Criminal Code (WA). This was a direction sought at trial. At the conclusion of the summing up by the trial judge, defence counsel asked for a direction under s 24. The submission was opposed by prosecuting counsel and declined by the trial judge. His Honour referred briefly to the evidence of the complainant, but not to the evidence of the appellant, before observing that he did not think that 'mistake is an issue fairly open to the jury to consider' (ts 508).

When should a 'defence' be left to the jury?

119 The question on the application for leave is whether the trial judge erred in law in making that ruling. His Honour was obliged to leave the issue to the jury and to give appropriate directions as to its resolution if, on a view of the evidence fairly open, necessarily that most favourable to the appellant, the jury might be required, if a fair trial was to be had, to deal with the question of mistake under s 24: see generally Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, and note particularly the observations of McHugh J at 198 - 199 [83] - [84]; Rogers v Western Australia [2008] WASCA 201 [25] - [26] (Steytler P, Miller JA and Murray AJA agreeing). Rogers was also a case where it was argued that the issue of an honest and reasonable mistake of fact should have been put to the jury.

120 Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 was a case of murder, where it was argued, unsuccessfully, that the 'defence' of provocation should have been left to the jury. Because the case came from Tasmania

and therefore, as here, it was for the prosecution to negate the availability of the defence, the High Court tested whether the defence should have been left to the jury by stating the relevant question in terms of the onus and standard of proof applicable. In my view, that is the appropriate course to take in this case.

A person who does ... an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act ... to any greater extent than if the real state of things had been such as he believed to exist.

122 In Aubertin v Western Australia [2006] WASCA 229; (2006) 33 WAR 87, this court restated the elements of the concept of an honest and reasonable mistake of fact. The accused must act under an actual belief, honestly or genuinely held, in the existence of the relevant state of things. In addition, that belief must be a reasonable one, the reasonableness of the belief being judged objectively, but having regard to the circumstances, including relevant personal attributes and characteristics of the accused, which apply to him at the relevant time.

123 As has been mentioned, the charges the subject of the appeal were counts 3, 11 and 13 on the indictment, all offences of aggravated sexual assault upon the same complainant, the partner of the appellant, a young woman of 24, who was the mother of the appellant's two children, aged 5 and 2 1/2. That the appellant was in a family and domestic relationship with the complainant was one of the circumstances of aggravation alleged: Code, s 319(1) and s 221. The other circumstance of aggravation alleged was that the appellant's conduct constituted a breach of an order made under the Restraining Orders Act 1997 (WA).

124 It is necessary to mention some background facts, in relation to which the evidence was largely uncontested. The appellant and complainant were of about the same age. They had been in a relationship together since about 2000. Their first child was born in 2001, and the second child was born in 2004. However, the relationship was one which involved a considerable amount of violence towards the complainant by the appellant, both physical violence and emotional abuse.

125 Eventually, the complainant managed to end the relationship. She and the appellant ceased living together in April 2006. On 18 June 2006 she applied for a violence restraining order and that order was issued on an interim basis on 23 June 2006. It became final on 30 August 2006, but the important event was the issue and service of the interim order, which, she said, ended any sexual contact between the two of them. Otherwise, the complainant said, the appellant would come to her house, uninvited, to see the children or take them with him for a visit. On those occasions, the appellant would physically and verbally ill-treat the complainant (ts 254 - 255).

126 I shall need to return to the background history of the relationship, but it is sufficient to note at this stage that the relevant contest between the parties at trial does not appear to have been in relation to the capacity to establish the circumstances of aggravation charged. The contest was in relation to the occurrence of particular acts the subject of various counts in the indictment and, where the appellant accepted the occurrence of the act, the question of consent was in issue. Counts 11 and 13 occurred, so it was alleged, at the same time and place, but the appellant contended that there was only one act of sexual penetration.

127 Putting that to one side, if, upon the complainant's evidence, it was established beyond reasonable doubt that there was an act of sexual penetration, in each case of the complainant's vagina by the appellant's penis, then the question was whether that was proved to have occurred without the complainant's consent, bearing in mind, as the jury were directed, that 'consent' is a term defined in s 319(2) of the Code as follows:

(a) consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;

(b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;

(c) ...

128 The question whether the evidence, viewed most favourably to the appellant, raised the question of honest and reasonable, but mistaken belief in consent may be stated by asking whether, despite the fact that it was proved beyond reasonable doubt that the complainant did not consent to the sexual penetrations in question here, there was a view of the evidence fairly open that it might not be proved beyond reasonable doubt that the appellant did not honestly believe that he had the complainant's consent, freely and voluntarily given; or, if he might have had that honest belief, that it might not be proved beyond reasonable doubt that he had no reasonable grounds for that belief in the circumstances as they were presented to him at the time, and having regard to the history of the relationship between the appellant and complainant.

129 It is important, I think, to see the counts relevant to the application for leave in the context of the other offences charged of which the appellant was convicted.

130 Counts 1, 2 and 3 alleged offences committed on 18 August 2006. Count 1 was an offence of burglary, aggravated by the fact that the place entered was the complainant's house, knowing that she was there. The appellant was convicted. Count 2 was an offence of aggravated vaginal penetration. The appellant was acquitted. Count 3 was also an offence of aggravated vaginal penetration. The appellant was convicted. He was sentenced to 2 years imprisonment for count 1, and 4 years and 10 months imprisonment, cumulative, for count 3.

131 Counts 4 - 9 inclusive were all alleged to have been committed on the following day, 19 August 2006. Count 4 was an offence of unlawful detention of the complainant. The appellant was convicted. Count 5 was an offence of threatening to kill the complainant. The jury disagreed in relation to that count. Count 6 was an offence of aggravated vaginal penetration by the appellant's penis. He was acquitted. He was convicted of count 7, another offence of unlawful detention of the complainant. Count 8 alleged an offence of aggravated assault occasioning bodily harm. The appellant was convicted. Count 9 was an offence of robbing the complainant of her bankcard. Again, the appellant was convicted.

132 In relation to the offences committed on 19 August 2006, none of which are the subject of this appeal, the appellant was sentenced to 2 years imprisonment for each of the two offences of unlawful detention, 2 years and 8 months imprisonment for the assault occasioning bodily harm, and 1 year and 8 months imprisonment for the robbery of the complainant's bankcard. Those sentences were ordered to be served concurrently with each other, but cumulatively upon the sentences imposed in respect of the offences committed on 18 August 2006, thereby increasing the aggregate term of imprisonment to that point by 2 years and 8 months imprisonment.

133 Finally, counts 10 to 13 on the indictment alleged offences all committed on the following day, 20 August 2006. Count 10 was an offence of vaginal penetration of the complainant by the appellant's penis. He was acquitted of this offence. Counts 11 and 13, as I have said, each involved offences of aggravated vaginal penetration of the complainant by the appellant's penis. He was convicted of both offences. They were separated by count 12, an alleged offence of attempted sexual penetration of the complainant by the attempted penile penetration of her anus. The appellant was acquitted of that offence.

134 The appellant was therefore convicted of two offences of aggravated vaginal penetration of the complainant by his penis on 20 August 2006. For each of those offences, as in the case of count 3, the appellant was sentenced to 4 years and 10 months imprisonment, but neither sentence counted towards the aggregate term of imprisonment imposed because both were ordered to be served concurrently with count 3. The total aggregate term was therefore one of 9 years and 6 months imprisonment. Eligibility for parole was ordered, and the sentences were backdated to commence on 13 September 2006, since which date the appellant had been remanded in custody. The appellant would therefore become eligible for parole 7 1/2 years after 13 September 2006, ie, on 13 March 2014.

135 It may be material to note that if one removes the contribution of all of the terms of imprisonment imposed for counts 3, 11 and 13 of 4 years and 10 months imprisonment, the aggregate term remaining is one of 4 years and 8 months imprisonment. The convictions and sentences unchallenged on appeal, having regard to the order of eligibility for parole, would therefore result in an earliest eligibility date for parole of 13 May 2009.

136 Of course, if any one of the convictions and sentences for counts 3, 11 and 13 remains in effect upon the determination of the appeal, the aggregate term of 9 1/2 years would remain unaffected by the appeal because as pronounced the sentences were to be served concurrently with each other but cumulatively upon the other sentences imposed.

137 When prosecuting counsel opened his case to the jury, he described generally the nature of the incidents on the three days in question upon which the State relied to establish the offences charged. He observed that he anticipated that there would probably be no great issue that the events occurred, but the defence would argue that there was no deprivation of liberty because the contention would be that the complainant was, on 19 August 2006, in the appellant's car and in his company voluntarily, because she consented to be there. Prosecuting counsel said that he thought it would be contended that the sexual penetrations which did occur over the period in question were with her consent. Counsel observed that the prosecution case was that to the extent that the complainant did not actively resist what happened, it was because, having regard to the appellant's behaviour at the time and the violence he had displayed towards her in the past, she felt obliged to submit to his demands. If the jury were satisfied of that beyond reasonable doubt, counsel observed, the law would not treat that submission as voluntary consent.

138 Defence counsel then made an opening statement. He confirmed that, 'the defence case, where consent is an issue, is that there was consent' (ts 38). Counsel also referred to the background of the relationship between the two people, a relationship which he described as 'dysfunctional'. Counsel observed that the relationship continued, despite the violence restraining order, and it was in that context that the sexual penetrations occurred, by consent. The exception mentioned by counsel was count 12, the attempted penile penetration of the complainant's anus. In relation to that incident, counsel said, the defence case was that it simply did not occur.

139 I have mentioned that the complainant's application for the violence restraining order was made on 18 June 2006, a couple of months before the incidents in question. The order was issued on 23 June 2006. The complainant's evidence commenced by explaining the nature of her relationship with the appellant which became a domestic relationship in late 2000 or early 2001, and lasted in an 'on and off' manner (ts 47) until it finally ended in early 2006. It was, she said, a relationship attended by both physical and emotional abuse. Towards the end of the relationship, he would regularly attack her physically, about weekly, punching her and kicking her (ts 49).

140 In April 2006, she sought to end the relationship by obtaining a HomesWest house. She did so as a single parent and moved in with the children. She told him the relationship was over, and this was a house in which he was not permitted to reside, but he would come and stay there anyway. Eventually she obtained the violence restraining order, 'because he was being controlling and more domestic violence' (ts 53).

141 Pursuant to the terms of that order, the appellant was not supposed to have contact with her, but he could have contact with his children, and arrangements were to be made by the appellant's mother. Nonetheless, he continued to come to the house, although he was then living at a different address with his sister. When cross-examined, the complainant confirmed that sexual intercourse between the two continued until the restraining order was obtained. So also did the rows between them continue. The appellant would simply come to the house, but not at her invitation. However, she agreed that when he came she would 'welcome him into the house' (ts 148). She did not seek police assistance to stop the breaches of the restraining order. She thought that if she did so the appellant would have, 'got all aggro'. She 'tried to keep things civil' (ts 156).

142 When re-examined, the complainant made it clear that after she moved into the HomesWest house she was uncertain whether sexual activity continued, but she was certain there was no sexual contact from the time when the restraining order was made. It was up to this point that she would accept him coming to the house, and she explained that by welcoming him into the house she meant, 'he is the father of my two children, so he come over' (ts 254). Speaking of the time before they 'broke up', presumably before she moved into the HomesWest house, the complainant agreed with defence counsel that she 'submitted to having sex on occasions because it was easier to get it over and done with than argue about it' (ts 134).

143 So far as I can see, to the extent that there was disagreement between the complainant and the appellant as to the background history, it was limited to the time when the sexual relations between the two finally ended. I have referred to the complainant's evidence. The appellant said, however, that sexual relations between them continued even after the restraining order was obtained. At ts 437 he disputed that sexual relations ended with the restraining order, which, he said, he did not oppose. The appellant said that he understood that there were occasions when she submitted to his demand for sex as the line of least resistance. That, of course, was an understanding that on such occasions she was not consenting in the sense to which the Criminal Code refers.

Did you have sexual relations with [the complainant] up to June of last year?---Yes, I did, yes.

Were there occasions when [the complainant] wasn't keen to have sexual relations?---There were a few times but I'd have to - she'd agreed on her consent and we did have sex.

Were there occasions when - you heard [the complainant] give evidence that you shared the same house and slept in - this was coming up to June, slept in the same bed. Is that right?---Yes.

And you kept - I'm going to ask you these things [WCW], there were occasions when you would come to bed and want sex. Is that right?---Yes.

And [the complainant] said yes to - well, a couple of days ago that she submitted to having sex on occasions because it was easier to get it over and done with. Do your remember her saying that, words to that effect?---Yes.

Was that the case that that happened from time to time?---Yeah, it did happen from time to time, yes (ts 379).

145 It will be recalled that the appellant was convicted of the offence of burglary committed by breaking in to the complainant's house without her consent with intent to commit an offence. He was also convicted of count 3, an offence of aggravated penile penetration of the complainant's vagina without her consent. It will be recalled that this is an offence in respect of which it is contended that the trial judge should have instructed the jury to consider whether the prosecution had disproved beyond reasonable doubt that the appellant honestly and reasonably, but mistakenly, believed that he had the complainant's consent to the sexual penetration.

146 It will be recalled that the appellant was then living with his sister. By arrangement made between the two women, the children were picked up on the evening of Friday 18 August 2006 to visit their father for the weekend. The complainant said the appellant later telephoned to say that he wanted to come over to pick up their son's special pillow which he used as a comfort and which had been forgotten. The complainant said that would be in order, and later, as she lay in bed watching television, the appellant knocked on the window and asked to be admitted. She was concerned because he sounded as if he was drunk and she refused to allow him in.

147 Although she thought that the rear door had been locked, she heard sounds from the back which indicated that the appellant was forcing an entry. She was going to call the police, using her mobile phone which was in a bedside drawer, but she did not do so because the appellant entered the room. He commenced to search for her phone and her wallet.

148 Her evidence was that the appellant asked her for sex. She refused. She said that the appellant said that if she would not give it to him he would just get it anyway. He pulled back the covers of the bed, took hold of her by the leg, and forcibly removed her trousers while she tried to push him away with the soles of her feet. Despite her refusal to agree, he then had intercourse with her without her consent. During the act she told him, 'This is unconsented sex and it's rape.' The appellant said he did not care because he would be going to gaol anyway (ts 60 - 62).

149 When that act ended, the appellant left the room and went to the lounge room, taking her telephone and making a call. She stayed where she was. He then returned to the bedroom, lay on the bed and said he wanted to have sex again. Again she said no. Again he removed her pants and again had intercourse with her from behind. Her evidence was that she told him that she did not consent, but she could not recall if she said that during the second act of intercourse. After he finished, and while he remained on the bed, she turned the television off, turned off the light and ultimately went to sleep (ts 63 - 65).

150 When the complainant was cross-examined it was put to her that on that night there was one episode of sexual intercourse only, and that was with her consent (ts 178). Later it was put to her that the only act of sexual intercourse was that which occurred after the appellant had used her mobile phone, when he entered her from the rear (ts 183).

151 The appellant said that he simply rang the complainant and asked if it was all right for him to come over to see her. She agreed. A cousin drove him there. He knocked on the door and on the window and identified himself. The complainant opened the door and let him in. They sat in the lounge while he used the complainant's mobile phone. He had asked for the phone and she readily gave it to him. He played some games on the phone and had a drink and cigarettes. After a while the complainant left him and returned to the bedroom. When he followed her she was lying on the bed. He positioned himself behind her and, after a little while:

I pulled her pants down from behind and she didn't say no or didn't make no struggle or anything and I entered her vagina from behind with my penis and had sexual intercourse with her until ejaculation (ts 384).

152 After that occurred he went to sleep. He denied all of the complainant's evidence, except that there was one act of sexual intercourse in which he penetrated the complainant from the rear.

153 The verdicts of the jury do not determine how the question raised on appeal in respect of count 3 on the indictment is to be answered, but it is clear, I think that the jury were prepared to accept as established beyond reasonable doubt that an act of sexual penetration occurred. They were not prepared to accept, in the face of the denial by the appellant, that there were two such acts on the night of 18 August 2006. Further, being so satisfied, they clearly accepted the evidence of the complainant that she refused her consent and resisted intercourse, in the context of the fact that the jury were satisfied, beyond reasonable doubt, that the appellant had entered the house, without consent, with the intention of committing an offence.

154 In relation to consent and honest and reasonable, but mistaken, belief in consent, the question is to be tested on the view of the evidence most favourable to the appellant, but the choice was stark. If the jury accepted the evidence of the complainant, as they clearly did, in relation to the question of consent, there could be no question that non-consent was established beyond reasonable doubt, and that it was communicated to the appellant by her express refusal and physical resistance before intercourse occurred. If that was not accepted as being established beyond reasonable doubt, the jury would acquit.

155 There was, in my opinion, in relation to count 3, no view of the evidence which might be accepted, consistent with the proposition that although the complainant did not consent, she did not effectively communicate that non-consent to the appellant, but behaved in a way which left open the proposition that although she was not consenting, the appellant might honestly believe, on reasonable grounds, that she was consenting. The evidence of non-consent was her evidence that she expressly refused consent and physically resisted.

156 In short, upon the evidence, viewed most favourably to the appellant, the jury could decline to accept the complainant's evidence that there were two acts of intercourse, but they could not accept the complainant's evidence that she did not consent without accepting that she made that non-consent clear to the appellant. There was no version of the facts reasonably open upon which the jury might have considered that although she did not consent, the appellant might honestly believe she did, and that he might hold that belief on reasonable grounds. If the jury thought his evidence might be true, that was evidence of consent given, not of uncommunicated refusal of consent.

157 The story about this day flows on from the events of 18 August 2006 and the evidence about 19 August. After the incidents discussed above which occurred on 18 August, the appellant and the complainant apparently fell asleep. The appellant was still in the house when the complainant woke on the following morning. He wanted her to go with him to pick up the children from relatives. She did not wish to go. She said he should go alone. Her motive, she said, was to get him out of the house and away from her, but he insisted that she accompany him and forced her to do so by threatening her with a metre-long metal vacuum cleaner pipe. She got into her car and they drove away. Eventually the eldest child, a boy, was located and put in the car, although he was later dropped off at a grandmother's house.

158 It seems that they were in the car for much of the day, driving, apparently aimlessly, but it was his act of initially forcing her into the car which constituted the first of the unlawful detention offences of which the appellant was convicted. His motivation for forcing her to be with him in the car was made clear when he told her that he wasn't going to let her go (ts 69). During the day, they saw the complainant's mother who told the appellant that he should not be with the complainant and driving her car. There was other telephone contact during the day with relatives, apparently concerned about the situation.

159 According to the complainant's evidence, the appellant was becoming increasingly aggressive and his behaviour was threatening. He caused the car to speed up dramatically and asked her if she was ready to die. They went to a bush area. He handcuffed her to a tree and she said he threatened to kill her, and made as if to strike her with a substantial piece of timber which she described as a 'log', and then with a tyre lever that he obtained from the car. The appellant was charged with threatening to kill the complainant, but the jury were unable to reach a verdict in relation to that matter.

160 The appellant wanted the complainant to give him $250. He did not say what he proposed to use the money for. He wanted her wallet and credit card, but it was back at the house. At some stage, according to the complainant, they turned off the road and drove to a remote area near the Albany wind farm.

161 Once there, she said, he demanded oral sex. She refused. He said he was going to have sex with her come what may, and he did so, despite her resistance and the fact that she told him what he was doing was rape and he would be put in gaol for it. That incident became count 6 on the indictment, of which offence the appellant was acquitted.

162 The appellant denied all of this evidence. His evidence was that the complainant was with him voluntarily, and a major purpose of the driving was for him to make contact with a drug supplier in Mount Barker. There was no deprivation of liberty, no threatening behaviour and no sexual penetration at all, let alone without consent. It is clear that the jury were unprepared to find the sexual assault offence established beyond reasonable doubt, relying entirely upon the uncorroborated evidence of the complainant.

163 Taking up the story from that point, the complainant's evidence was that after much driving, for purposes which are immaterial, the appellant returned to the area of the wind farm. According to her evidence, he said he was looking for a place to leave her, to tie her up. It was a remote location. As soon as he left the car she said she felt she had to make her escape, and she ran, hiding in the bush. He called out for her, but she did not leave her hiding place and eventually he drove away. The appellant said in evidence that they stopped so that the complainant could relieve herself, but they had been having an argument, he was angry and he drove off, leaving her in the bush.

164 The complainant commenced to make her way back to town. She got a lift from a passing car. The appellant, returning in her vehicle, saw that she had done so, followed up the other vehicle and stopped in front of it, causing it to stop. The appellant went to the other car and demanded that the complainant return to the vehicle with him. Fearful of the consequences if she did not obey, she complied with this demand, and they drove away. Despite the appellant's denial that he forced her into the vehicle against her will, it was this incident which led to his conviction of the second offence of unlawful detention.

165 Shortly after she got back into the car, in circumstances witnessed by the man and the woman from whom she had obtained the lift, the appellant angrily struck the complainant in the face with sufficient force to cause her pain and to cause bruising, which was later observed, and was the subject of medical evidence at the trial. This was the offence of aggravated assault occasioning bodily harm of which the appellant was convicted.

166 At some stage during the time that the appellant and complainant were then in the car, they were the subject of a high speed chase by police officers who had been alerted by members of the complainant's family and friends concerned for her safety. The evidence was that because of the manner of the appellant's driving and the danger which that created, the police gave up the chase and the appellant escaped.

167 At one stage later in the afternoon, the appellant drove the complainant to Mount Barker. He wanted to acquire drugs. He made her give him her bankcard and PIN. Although she initially refused to provide that information, she did so when he threatened to beat it out of her. Using the bankcard, he obtained $200 from her account and he used that money to acquire amphetamines. Both self-injected the drug. As has been seen, the appellant was convicted, in relation to the acquisition of the bankcard, of the offence of robbery, despite the evidence of the appellant that he asked for her permission to use the card to obtain the money to acquire the drug and that she agreed.

168 I mention these matters because the convictions for offences committed on 19 August are uncontested, and it is against the background of those events that the evidence about what occurred on 20 August 2006 is to be understood.

169 Having evaded the police chase, late at night the appellant drove to his sister's house. She was the woman minding the children of the appellant and the complainant, as well as her own, but she was not there. The appellant and the complainant entered the house and the complainant said that when they went to bed on a mattress on the floor of the lounge room, the appellant kept saying, 'I want'. She understood he wanted sex. She said no, but he said he was going to get it either way. He tried to remove her pants, but he could not do so. He was becoming frustrated and so she 'took them off for him'. She said she did so, 'Because he was going to get it. He was going to force himself on me' (ts 106).

170 The appellant's evidence was not dissimilar. He agreed that he asked for sex and they had one act of sexual intercourse before going to sleep. He said that when he asked her, 'She didn't say no, sir. She just told me, yeah, to hurry up' (ts 415). When cross-examined, the complainant agreed that after she removed her pants she said to the appellant, 'Hurry up'. This act was the subject of count 10 in the indictment. The appellant was acquitted.

171 In the morning, after his sister returned home, the appellant and complainant returned to her house. It was there that the offences the subject of the last three counts on the indictment, counts 11, 12 and 13, were said to have been committed. It will be recalled that the appellant was convicted of the offences of vaginal penetration without consent, counts 11 and 13, but was acquitted of count 12, the offence of attempted anal penetration.

172 It seems that when they returned to the complainant's house, both she and the appellant were aware that the police had been called and told of their whereabouts. They expected them to attend, as indeed ultimately they did. The complainant said that when they got to her house she tried to busy herself, but the appellant 'started to stress out', 'because he had nowhere to run' from the police (ts 108).

173 When asked by prosecuting counsel whether anything else happened before the police arrived, the complainant gave the following evidence:

Did anything else happen in the house before the police arrived?---Yes.

What's that?---He wanted to have sex again.

He wanted to have sex again?--Yes.

Did he say that to you?---Yes.

What words did he use, do you recall?---He wanted to have a fuck before the police got there.

Before the police got there?---Yes.

Did you respond to that?---Yes.

What did you say?---I said, no, I didn't want to get caught with my pants down.

Did he say anything in reply to that?---He just said, 'I'm going to get one more before the police get here.'

What happened then?---I just walked into the room and told him to hurry up.

174 She explained that this occurred on the bed, with her pants down, and the appellant penetrated her vagina with his penis from the rear. When cross-examined it was put to the complainant and she agreed, that when the appellant asked for sex she said, 'hurry up', 'come on then, hurry the fuck up' (ts 251). They walked into the bedroom. She pulled her pants down and the sexual intercourse occurred. It seems to have been accepted that she had refused the demand for sex. It was put to her in cross-examination, and she agreed, that she said, 'No, leave me alone' (ts 251).

175 When re-examined (ts 258 - 259) the complainant said that she did say that she did not want to be caught with her pants down, and that she told the appellant to hurry up. She said that she did not want to have sex with him, but she did not struggle, because she thought, 'It would've just been easier just to get it over and done with.'

176 In the end, then, her evidence remained that when the appellant demanded sex one last time before the police arrived to arrest him, she refused to consent, saying she did not want to get caught with her pants down, but, her evidence was, the appellant replied that he was 'going to get one more' before the police arrived. She said to hurry up, thinking that it was better just to get it over with, and she facilitated the process by removing her pants and lying on the bed. That is evidence of non-consent. It is evidence of submission, and the exchange would carry no implication of a consent freely and voluntarily given. This, of course, was the act of penetration charged as count 11 on the indictment.

177 The complainant's evidence continued that the appellant withdrew his penis and tried to penetrate her anally. He did not succeed, she said, because she bit his hand, saying to him, 'If you don't do this, I won't tell the police about the unconsensual sex' (ts 110). She said that he immediately stopped, put his penis back into her vagina, and again had sexual intercourse with her for a short time before he ejaculated. When cross-examined, it was put to the complainant that her evidence that he had tried to penetrate her anus with his penis was untrue, and it was put to her, in relation to the second act of penile penetration, that in truth there was only one act of sexual intercourse.

178 The evidence of the appellant raised a fundamental factual contest. He said that he asked the complainant for sex before the police arrived. He said, 'I just asked her for sex and she told me to hurry up and we walked into the room' (ts 416). The appellant's evidence was that no more was said; they had sexual intercourse; he did not attempt to penetrate her anus with his penis; and her evidence of what was said was simply untrue. If the appellant's evidence might be true, then the jury could not find non-consent beyond reasonable doubt. There would be consent conveyed to him.

179 The appellant maintained that position when cross-examined. As to the alleged attempted anal penetration, he said that he did not put his penis in her bottom 'deliberately'. He said, 'It was an accident' (ts 470). And he added that he did not recall the complainant biting him on the hand, or at all. It seems to me to be abundantly clear that the acquittal of count 12, the offence of attempted anal penetration, occurred because the jury were unable to exclude, beyond reasonable doubt, the proposition advanced by the appellant that there was in fact no attempt at penetration deliberately made, and that anything of this kind was accidental as he penetrated her vagina from the rear.

180 However, in relation to the acts of penile penetration of her vagina I can, for myself, see no basis in the evidence which could fairly raise the application of s 24. In the first place, the appellant gave no evidence that, accepting that she was not consenting, he honestly believed that he had the complainant's consent, freely and voluntarily given. His evidence was that only one act occurred, presumably that charged as count 11, and to that act the complainant expressly consented, going voluntarily into the bedroom and telling him to hurry up. Unless the appellant's evidence was rejected, he was entitled to be acquitted of both counts 11 and 13; count 11 because it might be the case that the complainant consented, and count 13, because it never happened.

181 On the other hand, as I have said, in my view the complainant's evidence established in respect of both count 11 and count 13 that she submitted to the acts of sexual penetration, not giving her free and voluntary consent, but, on the contrary, making it clear that she did not consent. In my view, no halfway house was possible. There was no version of the facts open to be accepted by the jury consistent with her withholding her consent, but not making it clear that she was doing so; indeed, on the contrary, acting and speaking in terms which might have caused the appellant to honestly believe, on reasonable grounds, that he had her consent. It follows that I would not hold that the trial judge was in error in declining to direct the jury in terms of s 24 of the Code. I would refuse leave to appeal.

182 I note in conclusion that the appellant seeks to have the court make two orders; firstly that, if the appeal is allowed, the convictions of counts 3, 11 and 13 should be set aside and a retrial should be ordered. I note that in that event the prosecution has made it clear that it would seek to retry the appellant for count 5, the offence upon which the jury disagreed. If mine is a minority view, I would certainly concur in the order that there should be a retrial.

183 The second order sought by the appellant, in the event that the appeal is successful, is that he be resentenced on the remaining counts, pursuant to s 30(6) of the Criminal Appeals Act 2004 (WA). On the hearing of the appeal it was put to counsel, and they agreed, that in the event that the appeal succeeded the court would invite further submissions on this issue.

184 I have set out the sentences imposed and the manner in which the trial judge structured those sentences to arrive at the aggregate term. It is clear that the sentence for count 3 had a substantial impact upon that aggregate. I have read his Honour's sentencing remarks. He gave attention to the totality principle and it is clear that he had in mind an aggregate term he considered to be of an appropriate length, having regard to the seriousness of the sequence of offences. Whether any further adjustment should be made if offences of sexual penetration without consent are to be retried may await the submissions of counsel if the occasion arises.