Agresti v The Queen
[2017] ACTCA 20
•1 November 2016; 11 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Agresti v The Queen |
Citation: | [2017] ACTCA 20 |
Hearing Date: | 1 November 2016 |
DecisionDate: | 1 November 2016; 11 May 2017 |
ReasonsDate: | 11 May 2017 |
Before: | Refshauge, Burns and Rangiah JJ |
Decision: | 1 November 2016 1. The appeal be upheld. 2. The convictions and sentences be set aside. 3. The Appellant be granted bail with conditions pending the making of further orders and the delivery of the Court’s reasons. 4. The name [Redacted for legal reasons] or anything that may identify her in these proceedings is not to be published outside of the Courtroom. 11 May 2017 1. Leave be granted to the Appellant under r 5531 of the Court Procedure Rules 2006 (ACT) to raise grounds 2 and 3 in the Notice of Appeal. 2. There will be a new trial on Count 1. 3. The publication of this judgment be prohibited until the conclusion of the trial on Count 1. |
Catchwords: | CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – particular offences – offences against the person – sexual offences – sexual intercourse without consent – intoxication of the complainant – where the complainant had “snippets of memories” – whether the complainant was unconscious during sexual intercourse – whether the appellant was reckless as to the complainant’s consent. CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – trial judge’s direction to jury – whether the complainant’s consent was caused by the effect of intoxicating liquor – correct test for causation under s 67(1)(e) of the Crimes Act 1900 (ACT) – trial judge’s direction erroneous – appeal upheld on this ground – conviction and sentence set aside – new trial ordered. CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – whether verdict is unreasonable and cannot be supported by the evidence – open to the jury to find the appellant guilty beyond reasonable doubt – appeal dismissed on this ground. |
Legislation Cited: | Court Procedure Rules 2006 (ACT), r 5531 Crimes Act 1900 (ACT), ss 54, 67 Human Rights Act 2004 (ACT), s 21 |
Cases Cited: | Arulthilakan v The Queen [2003] HCA 74; 78 ALJR 257 Davies v The Queen [2011] NSWCCA 19 T I v The Queen [2015] ACTCA 62 |
Texts Cited: | ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report No 18 (2001) |
Parties: | Harlan Agresti (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr H Dhanji SC with Ms G Huxley (Appellant) Ms M Jones (Respondent) |
| Solicitors Greg Walsh & Co Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 5 of 2016 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 10 September 2015 Case Title: R v Agresti Court File Number: SCC 252 of 2014 |
THE COURT:
On 10 September 2015, the appellant was found guilty, following trial by jury, of one count of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). The indictment dated 25 August 2015 alleged that on 22 June 2013 or 23 June 2013 at Canberra in the Australian Capital Territory the appellant engaged in sexual intercourse with OK, without her consent, and being reckless as to whether she was consenting.
The appellant was subsequently sentenced by the trial judge on 3 February 2016 to a term of imprisonment of 2 years and 4 months with the first 10 months to be served by full-time imprisonment and the remainder of the sentence to be suspended upon the appellant entering into a Good Behaviour Order.
On 1 November 2016, the hearing of the appeal took place. On that date, the appellant was, without objection, granted leave to amend his Notice of Appeal. The grounds of appeal, as particularised in the Amended Notice of Appeal, are as follows:
(a)Ground 1: The directions to the jury on the question of whether the complainant’s “consent was caused ... by the effect of intoxicating liquor” for the purposes of s 67(1) of the Crimes Act 1900 (ACT) were erroneous.
(b)Ground 2: The directions to the jury on the subject of consent and unconsciousness were insufficient.
(c)Ground 3: The directions to the jury failed to adequately distinguish the two identified routes to criminal liability.
(d)Ground 4: The verdict is unreasonable and cannot be supported having regard to the evidence.
On 1 November 2016, we upheld the appeal in relation to Ground 1 and the conviction and sentence of the appellant were set aside. We indicated at that time that we had not yet formed a view as to Ground 4. Resultantly, the appellant was released on bail pending the making of any further orders and the delivery of the Court’s reasons. It is important to note that if Ground 4 is upheld by the Court a verdict of acquittal will be entered. However, if Ground 4 is not upheld but Grounds 1 to 3 are upheld, a new trial will be ordered.
Brief Overview
The appellant admitted to having sexual intercourse with the complainant at the outset of the trial. The main issues at the trial were:
(a)whether the complainant consented to sexual intercourse with the appellant; and
(b)whether the appellant was reckless about the complainant’s consent.
In relation to the issue of consent the Crown put its case at trial in two ways:
(a)the complainant was unconscious and could not consent to sexual intercourse; and
(b)the complainant’s apparent consent was caused by the effects of alcohol, and as such there was no consent.
In relation to the appellant’s state of mind the Crown said that the appellant either knew that the complainant did not consent or was reckless as to whether she consented.
The defence case at trial was that the complainant was the initiator of, and consented to, the sexual intercourse and had made it clear that she consented to the sexual intercourse.
Given the nature of Ground 4, it is necessary to recount the evidence that was before the jury in some detail.
The evidence
At the commencement of the trial the accused made an admission of fact pursuant to s 184 of the Evidence Act 2011 (ACT) in the following terms:
I, Harlan Agresti, admit that on 22 June 2013 or 23 June 2013 at Canberra in the Australian Capital Territory I engaged in sexual intercourse with [OK], and I have been advised to make the above admission by my legal counsel and I understand the consequences of making the admission.
This was tendered as an exhibit in the trial.
Evidence of the complainant
In June 2013, the complainant was a student at the Australian Defence Force Academy (ADFA) and at that time was residing on campus. She explained that at ADFA there are individual buildings where a student would live with a group of about 40 people which are known as “Divisions”. The complainant gave evidence that she lived on the first floor. She testified that her weekends at ADFA were generally free and she went to Civic, Uni Pub, Mooseheads, Shooters and other drinking establishments around Canberra fairly often. She gave evidence that in the first half of 2013 she drank mixed vodka drinks and said that she was generally a loud person and became louder when she had been drinking.
She gave evidence that in the first half of 2013 she would go out to Civic three out of four weekends per month and that having a drink as a way to relax was a common event. She said that in the first half of 2013 she had been drunk before, however, she had never been in a state where she could not remember large portions of the night.
The complainant gave evidence of the events of 22 June 2013. That night she went to town with a group of people from her Division and they went out drinking at the Uni Pub. She could not recall the exact time she went out but recalled that she went out with Brandan Taylor, Nathan Owen, Brayden Dunstan, the appellant, Nick Shortland and Chelsea Morgan. She could not recall what she was doing before she went out that night and could not recall how she got to the Uni Pub. The first thing she could recall about that night was getting dressed. She agreed that no one had told her that she needed any assistance to get from ADFA to the Uni Pub.
She could not recall whether she was drinking at the “mess” or in the common room at ADFA before she went to town, and gave evidence that she did not recall speaking to the appellant at ADFA on 22 June 2013 prior to going out. She also did not recall flirting with the appellant that night or saying to the appellant before she went out to Civic, “If you do come out tonight, then I’ll let you touch my tits”. She said that at that point in 2013, if she had been drinking and had arrived at the point where she was “a bit drunk”, then that may have been something that she would have said. She also did not recall being “touchy feely” with the appellant or speaking with him in a flirtatious manner at ADFA before she went out that night. She did not recall “cuddling” with the appellant before she went out that night.
The complainant recalled having a lot to drink at the Uni Pub and socialising with members from her Division. She recalled hugging Brandan Taylor and talking to him while at the Uni Pub, which she said started some tension with his girlfriend, Ms Morgan, who was also present. She testified that this was one of the reasons she believed that she left the Uni Pub although she could not recall what time she left the Uni Pub. She also gave evidence that she did not remember speaking with the appellant at the Uni Pub. The complainant was unable to recall how many drinks she had that night and agreed that it was common for her group to buy rounds of drinks for each other, although she was unsure of how many rounds might have been bought.
She remembered then going to Shooters with the appellant. The complainant did not recall how she got to Shooters and also could not recall the appellant walking with her to Shooters, although she said “that would have been the only way that I got there”. In response to the question of whether it was possible that she might have gone to Mooseheads between the Uni Pub and Shooters she said, “I don’t have any memory in between those. So, yes, there’s a possibility”. She recalled that she had another shot at Shooters with the appellant and one of his friends, Joey Gadston. After having the shot she recalled beginning to feel sick at which point she sat down while the appellant was having a conversation with another ADFA member. She thought that when she first sat down she was leaning over to try and put her head towards her knees. She gave evidence that when she sat down she realised how intoxicated she was and recognised that she needed to go home. She then attempted to text another ADFA member, Toby Caruthers, to tell him that she was really intoxicated and needed to go home, as she said she knew he could “get her home”. She recalled that when she sent that message she was losing her vision and as a result there were typographical errors in her message. She thought she lost her vision for one or two minutes. Her message read “shooters, I am rebut fucked likeg [sic] need to go home” and was sent at approximately 11.00 pm. The complainant did not recall showing the text message to the appellant or speaking to the appellant about it, though she did recall the appellant coming over to her and asking if she was okay. She testified that at that point in time her vision blacked out and she could not see anything. She recalled telling the appellant that she could not see and really needed to go home but she did not recall if the appellant said anything in response to this. The complainant became aware that Mr Caruthers had replied to her message the next morning.
The next thing the complainant recalled was being “put into a taxi, or getting into a taxi”. She was unsure what time they arrived at ADFA. She could also not recall how she got to the taxi and only remembered getting in, then either falling asleep or passing out and waking up when the taxi arrived at ADFA. She gave evidence that she then sat up to get out of the car and the appellant, who was sitting in the front seat, came to open the door, although she was unable to recall whether she opened the door or if he opened the door. She then recalled that the appellant asked if she was okay. She said in response “Yes ... I’m right. I can get up”. She then got out of the taxi and started walking to her Division. In relation to the walk to her Division the complainant said:
...So I couldn’t really walk properly by myself, so [the appellant] had to help me walk. So he was holding onto me to - - -
...I don’t remember specifically how he was holding onto me. I just remember him guiding me, so like holding me to try and help me along. And then after probably about 100 metres I stopped because I felt sick. He asked me again if I was okay, and I said, no, I was going to throw up. I then proceeded to throw up in a garden, which was next to where I stopped, and then I don’t remember anything from that point until when I was in my room at ADFA.
The complainant did not recall asking the appellant to help her get to bed or to “tuck her in”. She also did not recall lying down on her bed in her room and saying to the appellant that he never got to “cash in on the bet”. She said she had no recollection of reaching up to the appellant, pulling him towards her engaged in kissing. The complainant testified that the first memory she had after vomiting was lying on her bed with the appellant on top of her and they were engaged in kissing. She agreed that she remembered she and the appellant kissing and that she did not remember how the kissing started, but just remembered it happening. She said at this point in time she was laying on her back on the bed and from the best of her knowledge the appellant was kneeling in between her legs, so that his body was propped up over the top of her body. She was also unable to recall whether she was an active participant in foreplay prior to sexual intercourse and said “I don’t have memories of those times”. She did not remember taking the appellant’s hand and pulling it towards herself. She recalled that at this point she was wearing a dress, which was tight and came up to about a third of the way on her thigh and thought that she was still wearing stockings. She gave evidence that in her later memory she did not have stockings or underwear on, although she could not remember taking them off at any stage. She agreed that she did not recall whether it was she or the appellant that took off her stockings or underwear.
The complainant also had no memory of the appellant saying something to the effect of “I’m not having sex with you because the division will find out by the end of the week” or saying to the appellant “it’s our little secret” prior to the sexual intercourse occurring. She did not recall encouraging the appellant by holding his hand on her or recall any conversation about birth control or about her position and that of the appellant during intercourse.
She then gave evidence that she had memories of “us having sex” and said that she did not remember how it started and that she just had “sort of snippets of memories of me sort of coming to and, yes, us having sex”. She said by using the term “having sex” she meant that the appellant was on top of her and she had a memory of his penis being inside of her, so she knew they were having penile-vaginal intercourse although she did not remember the full encounter. Her next memory was of the appellant standing up and getting dressed. As the appellant was getting dressed he said to the complainant that this had to be “our little secret”. She agreed, saying “okay”. The complainant recalled that she was still lying in bed as the appellant was getting dressed and after she agreed to keep their encounter a secret she went to sleep. She agreed that she would have wanted to keep it a secret that the appellant spent part of the night in her room.
The next morning when the complainant woke up she was still in her dress from the night before, although she was not wearing stockings or underwear. She gave evidence that when she woke up she was “blurry” and she checked her sheets to confirm whether she and the appellant had engaged in sexual intercourse. She gave evidence that she was able to confirm this as her sheets were stained. The complainant gave evidence that the next morning she was “feeling very, very sick” because of how hung-over she was. She went to have a shower and vomited inside the shower. She then attempted to have some breakfast, however, this made her feel worse. She testified that she then lay in the corridor outside her toilet for a few hours because every time she moved she thought she was going to vomit.
When the complainant checked her phone the next morning she saw that the appellant had texted to say that he had left his watch in her room. She texted him back to say that he could come and get it whenever he wanted and that she had her phone with her. She also recalled Jackson Davies coming to speak to her the next day. Mr Davies told her that he had been in the corridor the night before and had seen the appellant bring her into the corridor and said that he could see that she was “pretty drunk” but that the appellant had signalled him off. Mr Davies had then asked her if she and the appellant had slept together, which she denied. She denied engaging in sexual intercourse with the appellant to Mr Davies as she wanted to keep what had happened a secret and said there were a number of reasons for this. The first was that “I wouldn’t under my normal character have slept with [the appellant] so it wasn’t something that I was going around telling people that it happened”. She also said that there would be issues in her Division if it had become known that she and the appellant had engaged in sexual intercourse, as rumours start very easily and she would have received a lot of questions about it from others. She also gave evidence about the rules at ADFA in relation to fraternisation and that if others had discovered what had happened she could receive an infringement which could result in a restriction of her leave or privileges. In the six months that she had been at ADFA she had not received any disciplinary action and she agreed that she did not want this on her personnel file.
The complainant spoke to Mr Taylor about what happened between her and the appellant. She said Mr Taylor was one of her better friends at ADFA and she knew that if she confided in him he would not tell other people. She could not recall the exact words of her conversation with Mr Taylor, however, she said that she explained to him the context of what had happened and that she did not remember a lot of what had happened the night before. Later in her evidence, she said:
So because he was one of my closer friends I felt comfortable telling him that [the appellant] and I had actually slept together, but in the context of what I actually remembered, which was that, you know, I had a lot of blacked out memory from the night before and, yes, the actual context behind it, because I knew that he wouldn’t then go and tell other people that. So, yes, I told him the next day.
She gave evidence that she told Natasha James, her next door neighbour, what had occurred as she was also one of her closer friends. The complainant said she would have told Ms James the same thing, being that “I don’t actually have a full memory of what happened that night and I don’t know how it started or the fact that I lost my vision, things like that”.
The complainant gave evidence that the appellant came to collect his watch the next day and they had a conversation. She recalled that the appellant said:
Oh, I had to think about – this morning when I woke up, I had to think about whether last night had actually happened or not. Yes, because I – yes, I don’t remember. Like I didn’t remember that sort of happening.
She gave evidence that she understood this to mean that he was very intoxicated and that he had minimal memories of the night before.
The complainant gave evidence that she did not have a time frame on her memory of her and the appellant having sex and reiterated that she just had snippets of it occurring. She could not recall if she said anything to the appellant during those times, although she said she had a memory of him saying something while they were having sex. She testified that the appellant said to her “you feel so good. You’re like a virgin, tight”. She could also not recall having any conversation with the appellant after she got out of the taxi, except for the appellant asking if she was okay the first time and then later warning him that she was going to vomit. She also said that she “never got her full recollection back”.
A screenshot of the complainant’s Facebook page was tendered as an exhibit. It depicted a photograph by the official photographers at the Uni Pub on 22 June 2013, which was uploaded on to Facebook by the Uni Pub on 23 June 2013. The complainant wrote the names of those in the photograph, being the appellant, Chelsea Morgan, Brandan Taylor, herself, Nicholas Shortland, Brayden Dunstan and Nathan Owen. The complainant could not recall that photograph being taken.
Text messages between the complainant and a number of people were also tendered as an exhibit at the trial. Where relevant, we will set them out. On 23 June 2013, at 7.53 am the complainant responded to Mr Caruthers’ messages. She said “Hey sorry I didn’t reply, wasn’t really in the state to text, as such I think death would be nicer than what I am feeling now”.
In relation to the text messages between the complainant and appellant, they were as follows:
23 June 2016 at 12.45 am (the appellant): I left my watch in your room
23 June 2016 at 7.54 am (the complainant): Sorry only just read this, you can come get it whenever
23 June 2016 at 9.12 am (the appellant): yeah cool thanks :)
23 June 2016 at 9.36 am (the complainant): I also found $2.75 so I am guessing that is yours also haha
23 June 2016 at 9.36 am (the appellant): haha you know what you can keep it
23 June 2016 at 9.36 am (the appellant): I can’t get out of bed holy shit I’m hungover
23 June 2016 at 9.38 am (the complainant): Yep I know the feeling, I have been thinking that death would be more pleasant than how I am currently feeling, I laid on the floor outside our toilet for a good hour this morning, loving life
23 June 2016 at 9.39 am (the appellant): haha yeah I’d take a swift death pretty quickly right now. Couldn’t move myself to the toilet even if my bed was on fire.
23 June 2016 at 9.56 am (the complainant): Ok so Davies has spread that we slept together but I convinced him that we didn’t, so now I just need to spread that.
23 June 2016 at 9.58 am (the appellant): I know I just texted him to stop spreading shit buzz.
...
23 June 2016 at 8.10 pm (the complainant): Well like I agreed last night, our little secret, even in my drunkenness I do remember that haha
23 June 2016 at 8.10 pm (the appellant): Haha me too
23 June 2016 at 8.13 pm (the appellant): I don’t actually even remember how that started...
23 June 2016 at 8.14 pm (the complainant): yeah well don’t ask me haha I have no idea
23 June 2016 at 8.17 pm (the appellant): haha fuark [sic]
The complainant gave evidence that as a result of the conversation she and the appellant had on 23 June 2013 at [25] and the appellant’s comments in his messages on the morning of 23 June 2013, she formed the view that the appellant was very intoxicated the night before. She could not recall seeing the appellant have anything to drink besides the shot at Shooters.
On 23 June 2013, the complainant was also engaged in an instant message exchange with Isaac Thompson, who was the year above her at ADFA, which was as follows:
[Isaac Thompson]: Big night Saturday?
[the complainant]: haha yeah, I spent this morning wanting to die
[Isaac Thompson]: haha rippa [sic]. I was going through photos from last night and I was like aaa [sic] drunk [OK]!
[the complainant]: ah so you love all that field shit
[the complainant]: haha yeah pretty much, peaked early but, I literally couldn’t see by 11 haha
[Isaac Thompson]: Bahaha oh god [sic] ... Howd you make it home?
[the complainant]: Someone put me in a taxi and put me to bed
[Isaac Thompson]: Haha someone? That sounds scary haha
[the complainant]: Na [sic] it was one of the guys in my div [sic] so it was alright haha
[Isaac Thompson]: Oh thats good
[the complainant]: Yeah, god [sic] knows what would have happened if he didn’t get me home haha
[Isaac Thompson]: :P yeah thats [sic] dangerous Id [sic] hate to be a girl
[the complainant]: Yeah It’s a bit like that, but the guys here are pretty good so they look after me
The complainant said in relation to the above exchange she did not tell Mr Thompson what had happened between her and the appellant because she did not want rumours spread around ADFA that would hurt her reputation. She testified that she said “God knows what would have happened if he didn’t get me home” as she was in a state where she could not look after herself and if she had not been taken home something else might have happened in town. She also said that what constitutes a “big night” in ADFA terms would be being just past the point of dancing and having a good time but to the point where a person may do things they would not usually do.
Also on that same date the complainant responded to a message of James Lewis, who was the year above her at ADFA, describing the night as, “it was ok, definitely not the best night out but it was pretty good...”
The complainant recalled that towards the end of July or early August, after she returned from leave, people at ADFA told her that the appellant had told people that they had slept together but that she was “shit at sex and that [she] just star fished [sic] and laid there the entire time”. She agreed that this really annoyed her. She also recalled that she and the appellant had glandular fever around late June or early July 2013 when they had been on leave from ADFA. The complainant had been to hospital during her leave because of this and had asked the appellant if he had passed it on to her.
The complainant also gave evidence that at some point in time after this she spoke with Mr Davies about what had happened between her and the appellant. She recalled that Mr Davies was telling her that he saw the appellant bringing her into the corridor and he told her that he felt bad that he did not do anything about it. She thought he said “Oh, maybe I should have stopped you, considering how drunk you were”. She gave evidence that a few months later they again spoke about what had happened between her and the appellant as a result of an argument that had occurred between him and the appellant. She said to Mr Davies “he couldn’t make comments about [the appellant] having sex with me while I was unconscious and to stop talking to him”.
Also part of that tender bundle was a text message exchange between the complainant and the appellant on 28 October 2013:
[the complainant]: Hey I talked to Davies he is just in a really bad mood and what he said was uncalled for. I told him not to talk to you, is that enough? But on that note don’t ever threaten me with this again, I don’t want it to ever go any further but if it ever does I will be telling it how it happened
[the appellant]: I’m not threatening you. Sorry if it came across that way. He thinks he knows something, which he doesn’t. If you are unclear on what happened that night, you should of asked me first, because I remember it all. If you think what he is saying is true, you are wrong.
[the complainant]: I don’t want to talk about it, it happened a long time ago and I don’t think it needs to be brought up again. If Davies says anything else just let me know ok.
[the appellant]: Well if you ever want to know exactly what happened. I guarantee I remember it accurately. If Davies says anything else I’ll let you know but if it happens it will probably have to go higher, as much as I do not want it to.
[the complainant]: Yeah ok, but I suggest that you consider that decision very very hard if you ever have to make it because that is not something that will end well for either of us and it will stick to both our records for a very long time.
[the appellant]: I understand that but you have to consider how serious the allegation is that was just thrown my way. I was just called a rapist. I’m by no means a perfect person but if someone thinks they can throw an accusation like that round and I’ll just get over it ... Like seriously, is there anything worse that you could accuse someone of?
[the complainant]: I understand that, let’s just hope for both of our sakes that he doesn’t make another comment because that is something that I really don’t ever want to go through with staff because we aren’t talking about a meeting with the DO here. But anyway I apologise for the comment.
[the appellant]: Yeah me either. Look I would never put you through that because that’s just fucking you over for him being an idiot. He just seriously needs to understand that if we weren’t in the military I’d take him to court for that. Sorry I’m just so angry right now.
We will refer to these messages in more detail in due course.
Evidence of Jackson Davies
Jackson Davies commenced being a student at ADFA at the start of 2013 and also lived on campus. He gave evidence that on 22 June 2013 he decided to walk through the common room and talk to people and it was during this time that he saw the appellant and the complainant come up the stairs. He described the complainant using the railing to assist her in walking up the stairs and having a very blank expression on her face. He said she was using the inside of the railing to try to pull herself up. He said she was not being very vocal or sociable, which was how she normally behaved. He described the complainant as a very prominent character; vocal and always sociable. Although he agreed in cross-examination that he could not recall how the complainant usually acted when she was intoxicated, he thought he had never seen her intoxicated to the extent that she seemed to be on 22 June 2013. Mr Davies considered that he had seen the appellant intoxicated about half a dozen times at about 2014 and that he was “more on the louder side”.
He was approximately five metres away when he first saw the appellant and the complainant and saw them climb approximately 10 steps. He said that by the time they were at the top of the stairs he was approximately 2 metres away from them. He said the appellant did not seem to be in as bad a condition as the complainant, was not using the railing as much as the complainant and seemed capable of getting up the stairs on his own. He formed the view that the appellant did not seem to be affected by alcohol and was more or less his normal self.
Mr Davies considered that the appellant was not pushing the complainant up the stairs, but was guiding her up. By guiding he meant that the appellant had his hand lightly on her back, ensuring that she did not trip and could get up the stairs. He agreed in
cross-examination that he was unable to say whether the appellant’s hand was actually touching the complainant’s back.
Mr Davies did not say anything to either the complainant or appellant but thought he may have made some sort of facial expression or nodded towards the appellant. He said he then popped his head around the corner and saw the appellant in the doorway of one of the rooms, which he presumed was the complainant’s room.
The next day Mr Davies went to speak to the complainant and asked her what had happened. He gave evidence that she said, “Not too sure, like I was pretty drunk, and I felt like I’d passed out”. He said that he also spoke to the appellant within the same week and gave the following evidence in relation to that conversation:
Yep, So the conversation – the only key words I can recall from the conversation was that [the complainant] was either a bad root or a shit root, I can’t recall exactly what the terminology was, and then that was pretty much it.
...
...He said that she just laid there and didn’t do anything, hence why it was a shit root.
He also gave evidence about an argument between himself and the appellant in mid 2013, which related to the messages at [37]. Mr Davies was attempting to organise some paperwork via a Facebook page that he and other members of ADFA were a part of. Mr Davies made a comment about the appellant’s actions on the night of 22 June 2013 with the complainant but deleted the comment after typing it. He gave evidence that in that comment he made reference to the appellant trying to force himself on the complainant that night, and that he may have inferred that the appellant was a rapist. The appellant came to Mr Davies’ room to speak to him about this comment and said that he should not be saying things about his personal life. The appellant also threatened to report Mr Davies to their superiors and have him charged. After the conversation between himself and the appellant, Mr Davies spoke to the complainant. She said that she did not wish to bring anything up about the matter and that Mr Davies should not be saying anything on the matter as he was not involved.
Evidence of Brandan Taylor
Brandan Taylor also commenced studying at ADFA at the start of 2013 and lived on campus at that time.
Mr Taylor recalled that on the night of 22 June 2013, he, Sean Buxton, the complainant, Nathan Owen and two others went to the Uni Pub for a few drinks. He recalled the appellant, the complainant, Sean Buxton, Ms Morgan and Mr Dunstan being at the Uni Pub and thought they arrived at about 9.00 or 9.30 pm. He was not sure how much the complainant had to drink, although he recalled that she spent most of the night on one of the stools drinking vodka and raspberry cordial and that he purchased two or three of her drinks. He testified that he drank “a fair bit” that night as well. He recalled that he left at 11.00 pm and went to his girlfriend’s place. He said they generally went to the mess bar at ADFA prior to going out, but was unable to recall whether they did so on this occasion or whether the complainant was there. He considered the complainant was not intoxicated when they arrived at the Uni Pub.
He gave evidence that as the night progressed the complainant got a “bit tipsy” and “bit clumsy”. He recalled a couple of occasions where she tripped over the stool or had difficulty finding it, although he said “so did everyone else really”. He could not recall speaking specifically to the appellant and testified that he had been out with the complainant drinking on a number of occasions. He described her as generally being clumsy and loud when she had been drinking and commented that “having heels does not help” in relation to the complainant’s clumsiness. He considered that on 22 June 2013, the complainant seemed the same and there was “nothing out of the ordinary”. He could also not recall whether he saw the complainant and appellant interacting at Uni Pub.
Mr Taylor spoke to the complainant about that night, although he was not sure whether that occurred on 23 June 2013. The complainant recounted to Mr Taylor the events of 22 June 2013. She told him that they went up to the top level of the Uni Pub, continued to drink and that she was very tipsy and quite uncoordinated. From there, the appellant took her back to ADFA as she was heavily intoxicated and “all over the place”. Mr Taylor then described the conversation with the complainant as follows:
...but essentially she said that her and [the appellant] started having sexual intercourse, but she was in and out of consciousness. From there, ‘cause [sic] she said she was in and out of consciousness, I asked if it was consensual. She said she couldn’t remember, because of the fact she was in and out of consciousness. That’s when I then – I asked her, “Do I need to go tell the staff? Do you want me to do anything about this?”
And from there, she’s, like, “No, I don’t want you to tell – I don’t want you telling, I don’t want you to say anything,” ‘cause [sic] she couldn’t – ‘cause [sic] she didn’t remember, exactly.
Mr Taylor agreed that when he asked OK about whether the sex was consensual or not it was something “she thought long and hard about”. He also said that the complainant was quite calm about the whole event, although once she commenced talking about it she was quieter and more timid.
Evidence of Nathan Owen
Nathan Owen was a student at ADFA living on campus on 22 June 2013. He gave evidence that on 22 June 2013 he started drinking at the mess with a few people and had a few drinks. He testified that the mess is a dining area on campus that includes a bar. He thought this was around 6.30 or 7.00 pm but could not specifically recall whether the appellant was at the mess with them. They then went back to the common room and had a few drinks there. He recalled going to see the appellant and then he and the appellant returned to the common room and had a few more drinks. He recalled the complainant was coming in and out of the common room and gave evidence that there were a few conversations between the appellant and the complainant, mostly along the lines of the complainant trying to convince the appellant to go out that night. He thought that at about 9.00 pm the complainant said to the appellant, “If you come out, I’ll show you my tits later”. He was later unsure whether the complainant said “touch” or “show”. He thought a group of about five to eight people were around when the complainant made that comment and considered the complainant said this pretty loudly, as the complainant had a pretty loud voice. He thought the appellant might have laughed, shrugged it off and said something to the effect of, “you know, maybe I might come out now”. He described the complainant’s demeanour when she made that comment as “laughing with a bit of flirtatious maybe” and a “joking manner”. He thought that the complainant was a bit more “touchy”. He said by touchy he meant “poking, cuddling, stuff like that”. When asked about the nature of the touching he said it was “definitely two-way”. He described the conversations between the appellant and complainant as very flirtatious.
Mr Owen lived with the complainant at this time and had day-to-day interactions with her. He had been out drinking with her as part of a group before and had never heard her make a comment like the one she made to the appellant. He thought the complainant at this point had probably had a few drinks and was a bit louder and more social than normal. He thought he and the appellant arrived at the Uni Pub at 10.00 pm or 10.30 pm. He was unsure how they arrived there, and thought that the complainant left the group in the common room about 30 minutes earlier. He considered that the appellant, at the time of leaving for the Uni Pub, was definitely not drunk but also not sober; he thought he was somewhere in the middle. He considered the complainant was at about the same level of intoxication when she left the common room. He did not recall seeing the appellant again after he, Mr Owen, had left the Uni Pub. He agreed that he had very little to do with the other ADFA cadets that evening, other than being in a photograph with them.
Mr Owen thought that about one or two weeks later the appellant had told him that he and the complainant had had sex.
Evidence of Seamus Gallagher
Seamus Gallagher was also a student at ADFA and resided on campus in 2013. On 22 June 2013, he was studying and at some stage went to the common room. It was here that he saw the appellant; he thought this was shortly after midnight. He and the appellant then had a conversation during which the appellant told Mr Gallagher that they had just returned from town, although he was unsure who specifically the appellant was referring to when he said “they”. The appellant then said something to the effect of “old Gags guessed what happened?” “Gags” was the nickname of Mr Gallagher. He described the appellant as excited or surprised when he said this and he seemed as though he was “busting to tell me” something. The appellant then said something to the effect of “I just slept with [the complainant]”. He said he was not really shocked by this news, although was a little surprised, as he did not consider the appellant and the complainant to be close. He then said to the appellant words to the effect of “oh really ... how did that happen?” The appellant then told him that the complainant was showing interest in him, all night. The appellant also described the complainant as being “all over him” all night. Mr Gallagher said the appellant emphasised that the complainant was “coming on to” him a lot and thought the conversation lasted a couple of minutes.
Mr Gallagher knew the appellant relatively well at that time, as they were part of the same wider friendship group. Mr Gallagher gave evidence that he could tell that the appellant had been drinking, but he seemed quite normal. In cross-examination he agreed that he had told police in 2014 that he could tell the appellant was intoxicated, that his eyes were glassy, he was not really making contact and he could smell alcohol. Mr Gallagher gave evidence that he was about a metre and a half away from the appellant when they spoke.
Evidence of Karan Mehta
Karan Mehta was also a student at ADFA and residing on campus in 2013. On the night of 22 June 2013 he gave evidence that he was talking in his room with Nicholas Pullenin and Ryan Lawler. He testified that at around 11.00 pm or 12.00 am he heard a knock on his door and when he answered the appellant was there. Mr Mehta said that the appellant was “obviously drunk”, as he could smell alcohol and the appellant was very enthusiastic. He said the appellant then pushed past him once he had opened the door and said “Guess what? Guess what I just did?” Mr Mehta said they all had a few guesses and then came to the conclusion that the appellant had had sex with someone that they knew. The appellant then said “Yeah, I just had sex with [the complainant]. She was all over me from the start of the night”. He described the appellant as quite visibly happy.
Mr Mehta said someone then asked how it was and he said “Yeah, it was actually really, really bad. She just kind of lay there starfishing”. In response to the question of what he understood “starfishing” to mean Mr Mehta said:
By my understanding and I’m no expert in the English language, but by my understanding it’s if you’re not as responsive or engaged in the sexual encounter, if you will.
He said someone also asked the appellant if he had used a condom, to which he responded, “No, I didn’t. I just went straight up in there, jacked off on the side of the bed and like went back at it again”. He thought the appellant stayed for five or 10 minutes and said the appellant continued to repeat, “I’m really, really drunk” during the conversation. At the end of the conversation the appellant said “you can’t tell anyone”, and seemed quite firm with that comment. He saw the complainant the next day in the late afternoon in the common room, although he did not speak to her. He described the complainant as looking dishevelled, “pretty sick” and walking really slowly. Mr Mehta also saw the appellant the next day, although he was unsure when, and thought that he seemed fine.
Evidence of Natasha James
Natasha James was also studying at ADFA in 2013. The complainant came to speak to Ms James “some days” after 22 June 2013. Ms James gave evidence of that conversation as follows:
Basically from what I remember she was telling me about how when she went out drunk one night, she came back. Jackson Davies and [the appellant] brought her back to the division. They took her to her room and we were living next to each other at the time. I don’t remember where I was. Brought her back to her room, [the appellant] asked Davies to leave, which he did. They then I guess commenced sexual acts.
... She told me that she barely remembered anything that happened. Like, she remembers that it was going on, but that she was fading in and out because she’d been drinking a lot, that night.
Evidence of the appellant
The appellant was a student at ADFA in 2013. He had not been out with the complainant, either just them two or in company, prior to 22 June 2013. On the evening of that date the appellant was in the common room and recalled the complainant coming into the common room at some point. He considered that at that point the complainant appeared “completely sober” and he got the impression that they had not yet commenced drinking. By “they” he meant the complainant, Brandan Taylor and Nicholas Shortland. He did not originally intend on going into town on that night as he was sick.
He recalled having a conversation with the complainant in which she asked whether he was going to town, to which he responded that he did not think that he was. Mr Owen, who was also present in the common room, said that the appellant had to go out as he, the appellant, had already had something to drink. The appellant gave evidence that he maintained he did not feel like going out to town at which point the complainant said “Look, [appellant], if you come out into town, I’ll let you touch my tits later”. In cross-examination the appellant said he laughed in response to that comment and said “You’ve got to be kidding”. She said, “No, come on. Come out”. The appellant then said, “yes, okay maybe I will now”. He gave evidence that that sort of conversation was not common between himself and the complainant, and the complainant had never said anything like that to him before. He considered this to be a flirtatious offer, as it was the first time he had had any interaction with the complainant outside of their work. He did not think the complainant was laughing when she said this and she seemed “quite serious”. He said that by flirtatious he meant playful.
The appellant then left to get changed and when he came back he sat with the complainant as part of a larger group in the common room. He said there was “general talk” between them and a bit of flirty conversation and gave evidence that there was touching, which was mostly initiated by the complainant. He testified that whenever the complainant laughed, said something or he said something it would always be accompanied by a touch on his knee, shoulder or the complainant leaning into him. He did not see the complainant interact with anyone else in a similar way that night. He gave evidence that he had two drinks prior to leaving ADFA.
The appellant went with Mr Owen to the Uni Pub. It was not necessarily his intention to meet up with other members of ADFA or the complainant. He said the complainant said to them, “I’m going to the Uni Pub. Where are you guys going?”, and they replied, “probably to the Uni Pub as well”, and this was the extent to which they had agreed to meet up. He said when they first arrived they had a drink on the bottom floor and then went up to the pool table area, which was on another level, where they met up with other members of ADFA. He recalled having one drink there and said he had very little to do with the complainant while they were there. He recalled seeing the complainant drinking and later said that the complainant remained flirtatious at the Uni Pub when he spoke to her.
At some point, the appellant went to Mooseheads before moving on to Shooters. The appellant testified that he did not have anything to drink while at Mooseheads. He recalled receiving a message from ADFA members who were the year above him asking him to come and meet up with them, so he left the Uni Pub alone. He thought that he told Mr Owen that he was leaving and he was unaware of where the complainant was when he left. Later he met up with the complainant at Shooters; he was unsure of how much time had passed, but thought it could have been as short as half an hour or as long as an hour. The appellant had not planned to meet the complainant at Shooters. He gave evidence that the complainant came up to the bar where he, the appellant, was standing with another officer cadet. He thought the complainant looked as though she had been drinking and appeared to be having a good time. He did not consider that the complainant was stumbling or uncoordinated. He agreed that he had had about five drinks over several hours. At that point in time, the complainant showed the appellant a message that she was in the process of sending to Mr Caruthers. He described that as follows:
---She approached me and said, “I texted Tobi” and I said, “Okay. Why?” She held up her phone and showed me the text message in the field, so it had been written but not sent yet and I said, “Have you sent that?” and she said, “No,” pulled the phone down and I presumed she sent it, and then she said, “I shouldn’t have done that”.
The appellant thought that later that night after he, the complainant and another officer cadet had a drink, the complainant moved and sat down on one of the bar stools. After a little while he went over to the complainant and asked if she was alright and if she wanted to go home. He asked her if she was alright because sitting down is “bad for cadets” and gave evidence that if they are sitting down and not dancing, it is usually a sign that they are finished for the night. He also said that he was not feeling well so he was also getting ready to leave. He did not recall the complainant telling him that she could not see or that she really needed to go home.
The appellant estimated that Shooters was approximately 200 metres from the taxi rank and testified that he did not have to assist the complainant walking to the taxi rank. He said that they stopped at McDonald’s prior to catching the taxi and recalled speaking with the complainant there, although he was unsure of what was said. They then caught a taxi from the taxi rank opposite McDonald’s. The appellant sat in the front seat and the complainant in the rear seat and thought the drive took about 15 minutes. He was talking to the taxi driver. He did not agree that the complainant was sitting in the back of the taxi with her eyes closed, and did not look at her during the drive. The appellant recalled opening the taxi door for the complainant, although he thought she may have commenced opening it and he may then have fully opened the door while the complainant was gathering her purse and phone. He disagreed that at this point he asked the complainant whether she was okay. Shortly after, the complainant vomited. He asked if she was alright and she said, “Yes, yes I’m fine. The vodka raspberries they do at Uni Pub are disgusting”. He later said that the complainant described this as a “tactical vomit”. He disagreed that the complainant had said she was not okay.
He gave evidence that the complainant proceeded up the stairway in front of him and he was a bit behind her, saying that this was because after she had gone through the door, he closed the door so it would not “slam shut”. He recalled the complainant using the handrail to go up the stairs, but denied having his hand on her back to assist her. He also used the handrail. It was not possible for him to get to his room through this stairway, as his room was on the other side of the building. At some point he saw Mr Davies at the end of the corridor near the common room. The appellant and the complainant then went to the complainant’s room. The appellant testified that a person needed to use their specific swipe card to open their own room and he saw the complainant use her card to open her room and he went into the room with her. He testified that as they were coming into the building, the complainant had asked him to “come and put her to bed”.
The appellant considered that the complainant seemed “intentionally quiet” as they were going back to the accommodation block. He did not agree that she was quiet because she was intoxicated and was purposefully making as little noise as possible because they were coming home late. The appellant otherwise considered that she seemed normal and did not recall the complainant stumbling or tripping. He thought she was tiptoeing in an attempt to be quiet. The appellant rejected the proposition that he did not leave the complainant’s room because he saw it as an opportunity to take advantage of the complainant, as she was intoxicated, and added that he was invited to her room.
The appellant recalled that when they entered the complainant’s room, she took off her shoes and jumped on the bed. While she did that, he pulled out the complainant’s desk chair and sat down on it which he thought would have been approximately two metres from her bed. He recalled thinking that the complainant’s room was hot and asking her why it was so hot in her room. He then asked her “how she was feeling”. He then gave evidence that the following conversation ensued:
... she said that she’d bought – she said, “I bought a new heater because the heaters here at ADFA are crap” ... And then she said, “Yes, I feel great”.
--- After that, she asked me if I would tuck her in to bed.
[Counsel for the appellant]: Now was she dressed at this point? --- Yes.
[Counsel for the appellant]: And did you tuck her in to bed? --- Yes. She pulled down – so she like jumped up so she could pull the covers down that she was on top of.
... And then she motioned for me to tuck her in.
...I laughed. I guess I thought it was a bit silly. Moved over, like stood up from the chair, walked over, grabbed the sheets and pulled them up over her and then I tucked in the side closest to me and then I reached over to tuck in the other side and that’s when she reached up and – and grabbed me on the back of the neck.
He considered that the complainant appeared relaxed when she was lying on her bed. He gave evidence that she did not necessarily pull him in towards her but sat up enough so that she could kiss him on the mouth. They then kissed and there was no conversation around this time. He then said after kissing for some time:
I had my hands propped up either side of her because I was still standing next to her, next to the bed – she grabbed my right hand and moved it from the bed on to her stomach and pushed it down towards her stockings.
He recalled this occurring under the bedcovers. He gave evidence that at that point the complainant attempted to put his hand underneath her stockings and he then said to her, “I’m not having sex with you because by the end of the week, the whole division will find out”. He testified that he said this because he thought the complainant would tell people. The complainant then said, “No, no, no”, put her finger to her lips and said, “It’ll be our little secret”. The appellant said, “Bullshit” and the complainant responded “No. I promise”. The appellant then said, “Okay. Our little secret”, to which she replied, “Yes”. He said at that point he moved from standing next to the bed to being on the bed with the complainant where they continued kissing. After some time, the complainant attempted to take off the appellant’s pants. He recalled wearing chinos with cuffed bottoms, and that they were unable to be kicked or pushed off, so he had to get off the bed to remove his pants. He gave evidence that while he was taking off his pants, the complainant took off her stockings and underwear. They then engaged in
penile-vaginal intercourse. He disagreed that he knew the actions of the complainant that he could have construed as consent were caused by the effects of alcohol.
The appellant gave evidence that at some point during intercourse he stopped and asked her if she would swap positions, to which she responded, “No, I won’t get on top. I’m too fat. I’ll crush you”. While he was getting dressed he said to the complainant, “So you’re sure this is going to be our secret?” She said, “Yes. Our little secret” and put her finger to her mouth again, which the appellant laughed at. He then left the complainant’s room.
The appellant then said he told Mr Gallagher that he had slept with the complainant as in his mind no matter what he did it was only a matter of time before people found out. He gave evidence that he considered it important that he tell people that he knew what had happened “in [his] own words first”. The appellant recalled that on his way back to his room he went to Ryan Lawler’s room as he saw the door open and the light. He said he, Mr Mehta, Mr Lawler and Mr Owen were a tight group of friends so he was not reluctant to speak to them about things. He did not see Mr Pullenin when he went into the room, and said he would not have had the conversation he did if he saw him there, as they were not on good terms. Later he said he saw him once he started to speak and continued to speak. The appellant gave evidence that the reference to “starfishing” in his account to Mr Mehta was a reference to the complainant refusing to switch positions, and that she was active in intercourse. He disagreed that he said to anyone “she just lied [sic] there”. He agreed that he did use the term “starfishing” and he again later said that it was because she refused to adopt any position other than that of lying on her back. He disagreed that he knew the complainant was in a state of
semi-consciousness or that she was not responsive. He agreed that he did not use a condom and that he ejaculated on the side of the bed and agreed that once he ejaculated he commenced having sexual intercourse with her again. He disagreed that at this point “she just lay there” or that she was non-responsive at this time.
On 23 June 2013, the appellant went to the complainant’s room to retrieve his watch. During the course of cross-examination the appellant was taken through some of the messages he sent to the complainant that next day. He said he was “very, very ill” on 23 June 2013 as going out the night before had exacerbated his illness. He said the message “I don’t actually even remember how that started” was a reference to the “flirtatious stuff in general”, and that he was unsure where that came from, as he considered it came out of nowhere. He disagreed it was a reference to the sexual intercourse the night before and that he wanted the complainant to think that he did not remember anything. The appellant also denied that his intention in sending the text messages to the complainant and speaking with Mr Gallagher and Mr Mehta was an attempt to hide his sobriety.
The appellant gave evidence about the incident that occurred between he and Mr Davies. He was referred to the message he sent to the complainant on that date, which said, “If you’re unclear on what happened that night, you should have asked me first because I remember it all and if you think what he is saying is true, you are wrong”. He disagreed that he sent that message because he knew the complainant had no memory of the sexual intercourse they had engaged in on 22 or 23 June 2013 and had he sent that message because Mr Davies had told him that she had no memory of them having intercourse. He disagreed that he knew the complainant had no memory of the sexual intercourse that night as she was “really, really drunk”.
Ground 1: The directions to the jury on the question of whether the complainant’s “consent was caused ... by the effect of intoxicating liquor” for the purposes of s 67(1) of the Crimes Act 1900 (ACT) were erroneous.
We upheld the appeal in relation to Ground 1 at the hearing of the appeal. To explain why, we now need to refer to the trial judge’s directions the subject of Ground 1. However, before we do so, we set out the relevant legislative provisions of the Crimes Act 1900 (ACT) (the Act):
54Sexual intercourse without consent
(1)A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
(2)A person who, acting in company with any other person, engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
(3)For this section, proof of knowledge or recklessness is sufficient to establish the elements of recklessness.
67Consent
(1)For sections 54, 55(3)(b), 60 and 61(3)(b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused–
...
(e)by the effect of intoxicating liquor, a drug or an anaesthetic; or
...
(3)If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1)(a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.
The jury were told that an element of the offence which the Crown had to prove was that the complainant did not consent to the sexual intercourse. They were also given general directions on the meaning of consent, being that a person must freely and voluntarily consent to the sexual intercourse. The trial judge then proceeded to give directions on s 67(1)(e) of the Act:
At law consent that is “caused by the effects of alcohol or drugs is not consent”. If a person consumes alcohol, that of course may be one of a number of background factors. The consumption of alcohol, however, may not in all circumstances, would not in many circumstances, cause consent.
If the effects of alcohol were the decisive factor, in that circumstance we can say that it was the effects of alcohol that “caused the consent”. If alcohol caused consent in the sense that but for the alcohol, there would have been no consent, then any apparent consent is not consent at law. I will just repeat that. If alcohol or the effects of alcohol was the decisive factor in causing consent, if alcohol caused consent in the sense that but for the alcohol, there would have been no consent, then any apparent consent is not consent at law.
We agreed with the appellant’s submission that this direction was erroneous. The appellant submitted that, in particular, it was erroneous for the trial judge to direct the jury that causation for the purposes of s 67(1)(e) of the Act can be determined by applying a “but for” test. The appellant referred us to the High Court decision of Gillard v The Queen [2014] HCA 16; 88 ALJR 606, where the Court referred to the correct test for causation under s 67(1) of the Act at [24]:
... the causal connection between the circumstance and the complainant’s consent must be sufficiently substantial to warrant the attribution of criminal responsibility.
Gillard v The Queen was an appeal from this Court. The appellant was convicted following trial by jury of a number of sexual offences in relation to two complainants, including sexual intercourse without consent contrary to s 54(1) of the Act. The two complainants in that matter were sisters and the appellant was a friend of their father. The appellant had known the complainants since they were young children and had a particularly close relationship with one of the complainants. The offences were alleged to have occurred when the complainants were entrusted to the care of the appellant by their father. The complainants were aged 16 years or more at the time of the offences the subject of the appeal. At trial the Crown put their case on alternative bases. The first was that the complainants did not consent. The second was that the complainants’ consent to the sexual intercourse was negated because it was caused by the appellant’s abuse of his position of authority over the complainants under s 67(1)(h) of the Act. The issue raised in Gillard v The Queen differs from that of the present matter, as it largely focused on s 67(3) of the Act, which we have set out at [75].
The High Court in Gillard v The Queen observed that adopting the test for causation set out at [77] in relation to s 67(1) of the Act may avoid the unintended consequences of the application of the provision as referred to by the ACT Law Reform Commission in its Report on the Laws Relating to Sexual Assault, Report No 18 (2001). In that report, the ACT Law Reform Commission said at page 67 ([23]):
... problems arise in relation to the manner in which the factors said to negate consent have been defined. For example, it is unclear whether the reference to the ‘effect of intoxicating liquor, a drug or an anaesthetic’ is intended to mean that the person has been rendered unconscious, that she has become incapable of understanding what is intended or of exercising a free choice, that her judgment has been impaired, or merely that her inhibitions have been lowered. Is it sufficient that but for the effect of the alcohol she might not have been in the mood to consent? The inclusion of the term ‘anaesthetic’ tends to suggest that some serious interference with her capacity to understand and make a decision is required. However, even that supposition would not dispel every difficulty of interpretation. Is every person who gets drunk and has sexual intercourse with someone else to be taken to have been raped? If both were drunk should each to be taken to have raped the other? Of course, it is by no means uncommon for people to get drunk or use narcotic drugs and then to have sexual intercourse.
(Footnotes omitted)
The ACT Law Reform Commission also observed the difficulties of applying the “but for” test for causation in respect of consent and the circumstances referred to in s 67(1) of the Act at page 67; [22]:
Secondly, the phrase ‘caused by’ gives rise to difficulties in interpretation. Is it intended to mean the sole cause, the dominant cause, or a contributing factor? Does it require anything more than the so called ‘but for’ test? The ‘but for’ test is satisfied if ‘but for’ one thing something else would not have occurred. Hence, a sunny day may be said to ‘cause’ someone to go swimming. It is obviously necessary for a jury to understand what impact the relevant factors must have on the consent or apparent consent if this requirement is to be satisfied.
The appellant also referred us to the High Court decision of Arulthilakan v The Queen [2003] HCA 74; 78 ALJR 257. In that case the appellants were jointly tried and convicted of murder, wounding with intent to do grievous bodily harm and attempted armed robbery. The appellants, with a co-accused who pleaded guilty to the same offences, had planned to rob the deceased and his friend to obtain a mobile phone. During the course of the robbery the co-accused stabbed the deceased. The appellants complained that the trial judge erred in law in the way he directed the jury in relation to causation on the charge of statutory murder under s 12A of the Criminal Law Consolidation Act 1935 (SA). Specifically, the trial judge’s directions had the effect, as a matter of law, of directing the jury that, but for one event (in this case the presentation of the knife during the course of the armed robbery constituting an “act of violence”), the death of the deceased would not have occurred. The Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) said at [35]:
One of the dangers of a “but for” test of causation is that, in some cases, it is capable of indicating that a negligible causal relationship will suffice, but that was not a realistic risk in the present case, especially where the trial judge, in the sentence preceding the sentence that is now criticised, referred to “a substantial cause”.
The present case can be distinguished from that of Arulthilakan v The Queen. In the present case, the sentence immediately preceding the “but for” test in the trial judge’s directions referred to the effects of alcohol being the “decisive factor”. The trial judge said:
If alcohol or the effects of alcohol was the decisive factor in causing consent, if alcohol caused consent in the sense that but for the alcohol, there would have been no consent, then any apparent consent is not consent at law.
The appellant submitted that this left open the prospect that the effects of alcohol might be the “decisive factor” regarding consent if the jury were satisfied that, “but for” the effects of alcohol, would not have consented. The appellant further submitted that a direction that the effects of alcohol must be the decisive factor, does not reflect the test for causation set out in Gillard v The Queen. He submitted that the jury were not directed as to the critical criterion for causation in s 67(1)(e) of the Act namely, that the causal connection “must be sufficiently substantial to warrant the attribution of criminal responsibility”. He submitted that any illumination of what was meant by “a decisive factor” was likely to have been provided by the reference to the “but for” test which immediately followed.
The respondent submitted that the trial judge’s directions were not erroneous. It disagreed, in particular, with the appellant that the use of the phrases “decisive factor” and “but for” to describe the causal relationship between alcohol and OK’s consent were erroneous and that the phrase “sufficiently substantial” should be substituted. The respondent also drew our attention to the decision of Gillard v The Queen. In particular it noted that the Court in Gillard v The Queen referred to a number of the judgments in the decision of Royall v The Queen (1991) 172 CLR 378 in the context of explaining that, to warrant criminal responsibility being attributed, a casual connection between a s 67 factor and consent must be “sufficiently substantial”.
In Royall v The Queen the appellant was convicted of the murder of a woman who fell from the bathroom of her sixth floor flat. The deceased and the appellant had been engaged in an earlier violent argument in which he admitted to having assaulted her. The trial judge in that case directed the jury that there were four factual alternatives before them that they could choose from when deciding whether the appellant had caused the deceased’s death. The Court held that the judge’s charge to the jury was not erroneous. The respondent drew our attention to the judgment of Brennan J at 398, where his Honour said:
The basic proposition relating to causation in homicide is that an accused’s conduct, whether by act or omission, must contribute significantly to the death of the victim. It need not be the sole, direct or immediate cause of death.
(emphasis added)
In Royall v The Queen, Deane and Dawson JJ stated at 411-412:
Of course, there may be no single cause of the death of the deceased, but if the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder.
...
No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there must be a causal connexion between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connexion must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused.
(emphasis added)
Toohey and Gaudron JJ, after referring to the judgment of Burt CJ in the case of Campbell v The Queen [1981] WAR 286; 2 A Crim R 157, said at 423:
Burt C.J.’s comments have much to commend them. In particular, there is little to be gained, but there is a risk of confusion, if the members of a jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased’s death. ... In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death.
(emphasis added)
McHugh J also stated at 441:
In most criminal cases, the issue of causation is not controversial. If an accused’s act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused’s act or omission was sufficiently significant to make him or her “causally responsible” for the event or occurrence in question.
(emphasis added)
His Honour went on to say at 442:
In this context, “substantial cause” has been said to be a “convenient word to use to indicate to the jury that it must be something more than de minimis”: Reg. v. Hennigan, per Lord Parker C.J.
(Footnotes omitted)
The respondent submitted that what could be drawn from these judgments referred to in Royall v The Queen is that there is not one agreed formulation in respect of directions to a jury on the issue of causation. It submitted that, while the Court in Gillard v the Queen used the term “sufficiently substantial”, this was but one of the formulations in Royall v The Queen. It further submitted that, while the term “sufficiently substantial” was used in some of the judgments in Royall v The Queen, it was by no means adopted unanimously as expressing the causal relationship examined in that case nor was it adopted in any of the judgments as language that needed to be put before a jury to direct them on causality.
The respondent went on to refer to the cases of Campbell v The Queen, Timbu Kolian v The Queen (1968) 119 CLR 47 and Arulthilakan v The Queen. We do not propose to refer to those cases in any detail, as essentially the respondent referred to them to support the proposition that the use of the exact phrase “sufficiently substantial” was not required.
The respondent submitted that, as in Arulthilakan v The Queen, this Court should find that there was no “realistic risk” the jury would reason that only a negligible causal relationship was required. The respondent submitted that the trial judge gave a stronger direction by saying that alcohol had to be the “decisive factor” causing apparent consent.
In the Macquarie Dictionary (5th edition) the ordinary meaning of the word decisive is:
Having the power or quality of determining; putting an end to controversy: a decisive fact; a decisive battle ...
It is clear that the word decisive cannot be construed to mean the same as significant or substantial. We note that, in the judgment of the High Court in Royall v The Queen, and mention them that we have referred to at [85]-[88], their Honours used either the words “significant” or “substantial” when referring to the requisite causal relationship.
It seems to us that the use of the phrase “decisive factor” is really only another way of expressing the “but for” test. The decisive factor in this context could have been the final shot of alcohol the complainant had at Shooters.
We reject the respondent’s submission that, in the context of the trial judge’s directions, the direction at [76] should not be considered erroneous. We will not recount the entirety of the trial judge’s directions. It is clear that this is a case where there is a “realistic risk” that a jury could have interpreted the trial judge’s directions to mean that a negligible relationship between consent and the effects of alcohol would suffice to convict the appellant of the charge.
Under this ground of appeal the appellant also raised the issue that the trial judge’s directions on the mental element of the offence were affected by her directions on causation and the effects of alcohol on the complainant’s consent. As we are satisfied that the trial judge’s direction at [76] was erroneous, we do not consider it necessary to consider this issue any further.
Trial counsel for the appellant did not seek a redirection from the trial judge with regard to the direction given about the effect of the complainant’s intoxication on the issue of consent and, accordingly, the appellant cannot raise the misdirection without an order of this Court permitting him to do so: r 5531 of the Court Procedure Rules 2006 (ACT). The misdirection by the trial judge concerned a matter of central importance at the appellant’s trial, and may have led to a miscarriage of justice by reason of the jury understanding that the complainant’s intoxication need only be established as an operative cause of the complainant’s apparent consent, as opposed to being a cause of such substance as to warrant criminal responsibility on the part of the appellant. We accept that, notwithstanding counsel’s failure to object at trial, an order under r 5531 of the Court Procedure Rules 2006 (ACT) should be made, and we will make an order to that effect. The effect of upholding Ground 1 is that a new trial should be ordered.
Ground 2: the directions to the jury on the subject of consent and unconsciousness were insufficient
Although the evidence as to the state of the complainant’s consciousness was not altogether clear, on appeal it was accepted that “the lack of consent was either due to unconsciousness or because of the effects of alcohol”.
The evidence, however, was not that the complainant was unconscious for the whole time that the appellant was engaged with sexual intercourse with her. As noted above (at [47]), Mr Taylor gave evidence that the complainant told him that “she was in and out of consciousness”.
While the appellant’s case was that the complainant was active and responding to the intercourse, that did not relieve the trial judge from ensuring that the elements of the offence were explained to the jury in the context of the Crown case. Even if the jury rejected the appellant’s version, it still had to be satisfied beyond reasonable doubt that the prosecution had proved the elements of the offence: Douglass v The Queen [2012] HCA 34; 290 ALR 699 at 702-3; [12]. This, of course, requires the trial judge to assist the jury as to the elements of the offence and how the law requires them to apply the elements to the facts that they find: James v The Queen [2013] VSCA 55; 39 VR 149 at 156-7; [17].
The direction of which the appellant now complains, however, was not one about which complaint was made at the trial. No redirection was sought. That may well have been because of the way in which the appellant conducted his case. Nevertheless, that requires the leave of this Court under r 5531 of the Court Procedures Rules. As this Court said in T I v The Queen [2015] ACTCA 62 at [109]-[111], that is no mere formality and should not be granted without proper justification.
Thus, as McHugh J pointed out in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 319; [72], an appellant will have a difficult task in persuading a court that leave should be granted unless there is a miscarriage of justice. His Honour, however, was there referring to a failure to object to evidence or to order for a direction as to evidence.
A direction as to an element of an offence which the jury must be satisfied has been proved beyond reasonable doubt is in somewhat of a different kind and more fundamental to the fairness of the trial.
Of course, there may be a forensic basis for a failure to object and this will be relevant to the question of whether leave should be granted: Richardson v The Queen [2013] NSWCCA 218 at [99].
On the other hand, as Latham J, with whom Spigelman CJ and Kirby J agreed, said in Fung v The Queen [2007] NSWCCA 250; 174 A Crim R 169 at 179; [48]:
I acknowledge that a failure to direct correctly or at all, in relation to the elements of an offence, stands in quite a different category [than a direction about evidence – in that case about lies], and that in such a case, an applicant will generally be able to persuade the Court that a miscarriage of justice may have occurred.
See also Davies v The Queen [2011] NSWCCA 19 at [82]-[83].
This is, of course, consistent with the right to a fair trial, protected by s 21 of the Human Rights Act 2004 (ACT). Clearly, one of the incidents of a fair trial must be that the jury is properly instructed on the elements of the offence in the context of the Crown case.
In this case, were the jury to have considered that the basis for the lack of consent by the complainant was her unconsciousness, then the jury would need assistance, for the question was one of some complexity where it was not asserted by the Crown that she was unconscious during the whole of the episode but, as described “in and out of consciousness”. Indeed, it was not clear precisely when she was not conscious.
The trial judge did not address that issue at all, directing the jury only to the question of consciousness in a general way. Accordingly, leave should be granted and the issue addressed.
The direction of the trial judge was as follows:
Before you can consent to an act of intercourse or anything for that matter, you must have the opportunity to do so. What that means is if a person is asleep or unconscious at the time that an act of intercourse occurs, they cannot have consented because they did not have – unless of course they agree before they fell asleep or something like that but let’s not worry about those complications; that the person cannot have consented if they were unconscious at the time because they were incapable of consenting. They had no opportunity to consent freely and voluntarily.
The Crown pointed out what her Honour had later said about the issue of consent:
Whether at the time that the intercourse occurred, [the complainant] consented to that act of penile-vaginal intercourse. What the Crown has to prove is the negative of course. The Crown must prove beyond reasonable doubt that [the complainant] did not consent to that act of sexual intercourse.
This, the Crown submitted, made it clear to the jury that the Crown had to prove the absence of consent by the complainant for the duration of the sexual intercourse.
In our view, that is by no means clear from those directions. A person can withdraw consent at any time and thereafter the continuation of intercourse is an offence: Ibbs v The Queen [1988] WAR 91 at 93-4.
It may be accepted that a person who is unconscious is not capable of giving consent to intercourse: R v Mayers (1872) 12 Cox CC 311; R v Young (1878) 14 Cox CC 114. The Crown case on consciousness, however, was not that the complainant was unconscious at all relevant times, but that the complainant lapsed in and out of consciousness.
Whether lack of consciousness during intercourse means that consent is withdrawn is a matter of fact; it is not necessarily so. The direction does not address that issue at all.
Thus, if the complainant consented prior to falling unconscious and, when she regained consciousness after, perhaps, a short period and continued to participate actively in the intercourse, the jury may have, if properly instructed, found that there was no lack of consent. It may be that, as pointed out in Saibu v The Queen (1992) 10 WAR 279 at 292, consent to the continuance of intercourse beyond consciousness may have been given, but that is a question of fact for the jury. Clearly, the jury would have to have been carefully instructed as to whether there was any basis for the absence of consent during any period of unconsciousness on the whole of the facts. This was not addressed.
In those circumstances, the direction was inadequate and this ground of appeal must also be upheld.
Ground 3: the direction to the jury failed to adequately distinguish the two identified routes to criminal liability
As noted above, the Crown accepted on the appeal that it had put its case at trial on the basis that the complainant’s compliance with sexual intercourse was not consent because it was caused by the effect of alcohol or, alternatively, because she was unconscious.
The appellant submits that the trial judge’s direction on the fault element of the offence was inadequate because it addressed the Crown’s case that the complainant’s compliance was caused by the effect of alcohol which, under s 67 of the Crimes Act negated any consent. The trial judge did not address the question of whether the appellant was reckless as to whether the complainant was consenting insofar as the complainant was lapsing into and out of consciousness.
The trial judge did identify the two ways in which the Crown put its case as to whether the complainant consented as follows:
As I understand the prosecution case in relation to element 2; that is, the prosecution case that the complainant did not consent to the act of intercourse, the prosecution, as I understand it, puts the case in two ways; first that the complainant was incapable of consenting because she was lapsing in and out of consciousness. She was not in a position in the sense of being conscious, sufficiently conscious, to freely and voluntarily consent, so therefore there was no consent. That, as I understand it, is the first way the prosecution puts it.
As I understand it, the second way in which the prosecution argues that the complainant did not consent to the act of intercourse is that to the extent there have been an apparent consent, any consent was caused by the effects of alcohol and therefore at law it was not consent. In relation to the question of consent you will therefore need to look, I would suggest, fairly closely at evidence relating to intoxication, of the complainant I mean. The crown relies upon her evidence that she was very drunk, she was sick, she was vomiting, she lost her sight a relatively short time before she was lapsing in and out of consciousness et cetera.
The last sentence risks confusion for, having distinguished the two ways in which the Crown puts its case, the last reference risks conflating the two grounds.
When addressing the appellant’s state of mind, however, her Honour did not address the issue of the temporal relationship between the alleged consent and the period of unconsciousness. All her Honour relevantly said was:
Now, in this case, again, that is in relation to element three, [that is that the appellant must have been reckless as to whether the complainant consented], the prosecution as I understand it, says that the complainant, on her evidence, was passing in and out of consciousness and that that situation would have been quite apparent to the accused. Further, he would have been – this is the prosecution case, he would have been well aware of the extent to which the complainant was under the influence, the extent to which alcohol was affecting her. He would have realised that if she consented, or to the extent that she consented, that that consent would have been caused by the affects of alcohol, that is the prosecution case.
There is no further reference to the consciousness of the complainant and, in particular, the need for the appellant to know when the complainant’s periods of consciousness occurred, especially in relation to any basis he may have had for his belief or knowledge as to her consent.
Thus, it had to be made clear that, if this route to liability was to be made out by the Crown, the jury needed to have been told that it could only find the appellant guilty if he knew that the complainant was not conscious at the time of the sexual intercourse or during any part of it, such that she could not be consenting.
As to the complainant’s intoxication, the trial judge correctly directed the jury, contrary to the challenge to the direction by the appellant, that “to the extent that [the complainant] consented, that that consent would have been caused by the effects of alcohol”. This direction complied with the requirements of the High Court in Gillard v The Queen at 612; [24].
In respect of this complaint by the appellant, the Crown submitted that the Crown case was that the complainant had consumed a substantial amount of alcohol. The submissions continued:
Her evidence was that her memory had numerous gaps in it. This, and the complaint evidence about her being in and out of consciousness, gave rise to an inference: she had consumed so much alcohol it had deleterious effects on her ability to remain conscious. The only possible cause of unconsciousness on the evidence led at the trial was alcohol.
This, however, is no answer to the appellant’s challenge, for it conflates the two ways in which, as acknowledged by the trial judge and by counsel for the Crown on the appeal, the appellant may have been found guilty. This does not address the issue of consciousness which was not that the complainant was unconscious for the period during which the sexual intercourse took place but was episodic – “in and out of consciousness” without that being better defined by reference to the period during which intercourse took place. The Crown simply did not engage with that issue.
The question was not whether it was permissible for the Crown to leave two alternative bases on which the appellant could be found guilty. That is, of course, acceptable. See, for example, Royall v The Queen. The question here was whether the directions given addressed both bases and addressed them adequately so far as each separate basis was concerned. In our view, her Honour did not. This ground must be upheld.
Ground 4: the verdict is unreasonable and cannot be supported having regard to the evidence.
The relevant principles with regard to an appeal on the ground that the conviction of the appellant is unreasonable and cannot be supported by the evidence are well established. In M v The Queen (1994) 181 CLR 487 the Court (Mason CJ, Deane, Dawson and Toohey JJ) set out the relevant principles to be applied at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations...
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(citations omitted)
The Court, in considering the question of whether it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt, must make its own assessment of the sufficiency and quality of the evidence before the jury “to determine whether the verdicts of guilty could be supported”: SKA v The Queen [2011] HCA 13; 243 CLR 400 at [22] (French CJ, Gummow and Kiefel JJ).
We also note the High Court’s recent decision in Fillipou v The Queen [2015] HCA 29; 256 CLR 47 where French CJ, Bell, Keane and Nettle JJ said at [12]:
Authority makes plain that a jury’s finding of guilt is not be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice.
(Footnotes omitted)
We turn to address the parties’ submissions in relation to this ground of appeal.
The appellant’s submissions
The appellant divided his submissions in relation to this ground of appeal into three parts:
(a)unconsciousness [of the complainant];
(b)effects of alcohol; and
(c)the appellant’s state of mind.
For convenience, we refer to the appellant’s submissions by adopting the above three headings.
Unconsciousness
The appellant submitted that the Crown had to establish that the complainant did not consent because she was lapsing in and out of consciousness at the time of sexual intercourse. The complainant did not give evidence that she was either unconscious prior to sexual intercourse taking place or that she lost consciousness during sexual intercourse when she described her memory of the sexual intercourse. Rather she referred to having “snippets” of memory regarding the events. She also gave evidence that she either fell asleep or passed out in the taxi on the way to her residence, which was before the sexual intercourse took place.
Evidence that the complainant was lapsing in out of consciousness came from statements made by the complainant to others in the following days, which we have referred to above in the evidence of Mr Davies, Mr Taylor and Ms James. The appellant submitted that, while this evidence provided some support for the proposition that the complainant was lapsing in and out of consciousness, it was of limited weight. He submitted that it did not support a finding that the complainant was in fact lapsing in and out of consciousness during the sexual intercourse. He further submitted that it did not prove beyond reasonable doubt that the complainant did not consent because she was unconscious at the time of intercourse.
The appellant submitted that it was a real possibility or likelihood that the complainant’s accounts given as to lapsing in and out of consciousness related to gaps in her memory rather than true loss of consciousness. To support this submission he referred to the complainant’s intoxication and her acknowledgement that she did not remember parts of the previous night. The complainant did not tell Mr Taylor that she was lapsing in and out consciousness, but that she had “blacked out memory”.
Effects of alcohol
The appellant submitted that the Crown had to prove beyond reasonable doubt that the complainant’s consent was caused by the effects of alcohol. The appellant then took us through the evidence of the complainant, Mr Owen, Mr Davies and the appellant. We will not repeat this evidence, as it is set out in some detail above.
The appellant submitted that the complainant did not say that she did not consent to the sexual intercourse. He said that the exchanges between the complainant and the appellant the next day suggested that the sexual intercourse had been consensual, and, at the very least, the exchanges undermined any inference that there was no consent. He further submitted that, while the evidence established that the complainant was intoxicated to the point where she vomited and there were gaps in her memory due to the level of her intoxication, it did not establish beyond reasonable doubt that her consent was caused by the effects of alcohol. It did not establish beyond reasonable doubt that she was so intoxicated as to be incapable of freely and voluntarily agreeing to sexual intercourse.
The appellant’s state of mind
To address the issue of the appellant’s state of mind, the appellant’s evidence was referred to in detail. Again, this was set out above and we will not here repeat it. We note that there was no evidence that the appellant knew that the complainant was lapsing in and out of consciousness and any finding to that effect would need to be based upon inference from direct evidence. The appellant further reiterated that it could not be established that the complainant was in fact lapsing in and out of consciousness.
The appellant submitted that while his statements to others that he had intercourse with the complainant and as to her “starfishing”, while unpleasant, could be regarded as inconsistent with having had sex with her without her consent, or certainly having done so knowingly or recklessly. He also said that the evidence neither supported an inference that the appellant knew that she was lapsing in and out of consciousness nor that she was in fact lapsing in and out consciousness.
The appellant’s evidence was that the he knew the complainant had been drinking and that she vomited, however, he said that she told him it was a “tactical vomit” (whatever that may mean). The appellant submitted that this evidence fell short of any inference that he knew that her consent was caused by the effects of alcohol.
He submitted that the appellant’s intoxication was also to be considered when determining whether he had the requisite state of mind. The evidence was that the appellant had one to two drinks prior to leaving ADFA, approximately two drinks at the Uni Pub, nothing to drink at Mooseheads and a shot at Shooters. He also pointed to his text messages to the complainant which indicated that he was hung-over the next morning. The appellant referred to the evidence of Mr Owen, Mr Gallagher, Mr Mehta and Mr Davies about his intoxication.
The appellant submitted that the whole of the evidence did not establish beyond reasonable doubt that the appellant knew that the complainant’s consent was caused by the effects of alcohol, nor did it establish that he was reckless as to whether the complainant was consenting.
The appellant then referred to other aspects of the case that raised a doubt as to whether the appellant had the requisite state of mind:
(a)the evidence that the complainant was flirting with the appellant earlier in the night, including that she said she would let the appellant touch her breasts if he came out; and
(b)the appellant told others of the sexual intercourse shortly after it occurred and seemed eager to tell others it had happened (referring to the evidence of Mr Gallagher and Mr Mehta).
The appellant submitted that those aspects are inconsistent with a “guilty mind” and militates against the drawing of an inference that he knew or was aware that the complainant was either unconscious or that her consent was caused by the effects of alcohol.
The appellant’s conclusion on Ground 4
The appellant submitted that the evidence did not establish the appellant’s guilt beyond reasonable doubt and that it was not open to the jury to reach that conclusion. The appellant submitted that the evidence fell short of proving that the complainant did not consent to the sexual intercourse (either because she was unconscious or because it was caused by the effects of alcohol). He further submitted that the evidence did not establish beyond reasonable doubt that the appellant had the requisite state of mind for the offence.
He further submitted that any advantage held by the jury was slight and that this was not the typical case where the credibility of the complainant was squarely in issue. Rather, doubts arose as a result of the admitted frailty of recollections of the night.
The respondent’s submissions
The respondent submitted that there was ample evidence on which the jury could have safely convicted the appellant.
In relation to the issue regarding the complainant’s consent, the respondent submitted that the complainant did not say she did not consent to the sexual intercourse because she did not remember whether she consented or not. The complainant did not say that she was unconscious because she could not give that evidence. The respondent then pointed to the evidence of the level of the complainant’s intoxication both from OK and other witnesses. The respondent submitted that, based on this evidence, it was well open to the jury to infer that either she was so intoxicated that her consent was caused by alcohol or she lacked the capacity to freely and voluntarily consent. The respondent submitted that the jury’s advantage of seeing and hearing the evidence in this respect was significant, if not decisive. It also said that, if the jury did not accept the evidence supporting this inference, and to do so they had to assess the witnesses who gave that evidence and how they gave it, then the offence could not have been found proved. It submitted that the jury clearly accepted the evidence put forward by the Crown and that there was no reason to suggest that the sufficiency and quality of that evidence did not allow this inference to be drawn.
In relation to the appellant’s state of mind, the respondent submitted that the appellant’s version of events must have been rejected by the jury in reaching its verdict. The respondent also submitted that the evidence that was given of the complainant’s flirtatious behaviour occurred hours prior to the sexual intercourse and arose in very different circumstances. It submitted that this was irrelevant to whether OK consented and whether the appellant knew alcohol caused that consent or was reckless about that consent when they both arrived back at ADFA. In relation to the appellant’s submission that the appellant’s bragging about having sexual intercourse with OK is inconsistent with him having a guilty mind, the respondent submitted that this only has appeal in isolation. However, when considered in the context of the trial, specifically that the appellant had made it clear to Mr Mehta that no one could know about him having sex with OK and that he lied to OK the next morning about being heavily intoxicated, it was well open to the jury to reject that submission.
The respondent submitted that the appellant was able to recall the events and give a detailed account of what occurred, in contrast to the complainant. His capacity to do so was supported by the evidence from other witnesses. The respondent submitted that the appellant’s version of events was rejected by the jury and that there were sound reasons for doing so. The respondent specifically drew our attention to:
(a)the appellant adding extra details in cross-examination;
(b)inconsistencies between his evidence and the text messages he sent the night of the incident and the next day, specifically how the appellant portrayed himself the next day in text messages to OK and how he appeared immediately before and after the incident; and
(c)the appellant’s texts afterwards in relation to how OK appeared to him during the encounter were completely consistent with her version and completely inconsistent with his version that she was an active and willing participant.
Conclusion on ground 4
The essential issues at the appellant’s trial were whether the complainant consented to the admitted act of sexual intercourse and whether the appellant had the requisite state of mind to commit the charged offence. The complainant was never asked by the Crown whether she consented to the sexual acts she described with the appellant. This is entirely understandable, as the complainant could not recollect large portions of the relevant events.
The Crown held the onus of proving that the admitted act of sexual intercourse had been committed by the accused without the consent of the complainant. In most sexual assault trials, there will be direct evidence from the complainant that she or he did not consent to the act of sexual intercourse. There will also be cases where the evidence establishes that an act of intercourse was without the consent of the complainant because the evidence establishes that the complainant was unconscious at the time and unable to consent. The present case did not come within the former category, and did not fall neatly into the second. In her evidence, the complainant referred to a lack of memory of portions of the relevant evidence. A lack of memory may indicate a loss of consciousness at that period in events where memory is absent, but it may also simply represent a lack of memory of events consciously experienced by the complainant due to the effects of alcohol.
In the present case, the evidence was incapable of proving that the complainant did not consent to the act of intercourse because she was unconscious. It is regrettable that, in its closing submissions to the jury, the Crown on a number of occasions said that the complainant had testified that “she was so intoxicated she was going in and out of consciousness at the time they engaged in sexual intercourse”. The complainant, in fact, never gave such evidence; all the complainant testified to was having gaps in memory.
The Crown could not prove lack of consent by direct evidence to that effect from the complainant, nor could it prove lack of consent by reason that the complainant was unconscious at the time of the sexual intercourse. The Crown case had to be based upon the proposition that any apparent consent to the act of sexual intercourse by the complainant was negated by her intoxication; in other words, that the effect of the complainant’s intoxication was so substantial that it caused her to be unable to consent to the act of sexual intercourse.
There was clear and cogent evidence to the effect that the complainant was heavily intoxicated on the evening of 22 June 2013 and the early morning of 23 June 2013. At Shooters she sent a largely incoherent text message to Mr Caruthers to say she was intoxicated and needed to go home. She also testified to losing her vision at about this time, and to telling the appellant that she could not see. On the way back to ADFA in the taxi, she either fell asleep or passed out. After getting out of the taxi she vomited. Mr Davies gave evidence that he had previously seen the complainant intoxicated, but he had never seen her as intoxicated as she was when she returned to ADFA with the appellant. The appellant gave evidence to the effect that the complainant was not obviously intoxicated to a significant degree, and disputed the complainant’s evidence that she told him at Shooters that she could not see. The appellant agreed that the complainant vomited after alighting from the taxi at ADFA, but said that the complainant blamed this on the “disgusting” vodka and raspberry drinks she had consumed.
It was open to the jury to accept the evidence of the complainant and Mr Davies and to reject that of the appellant as to the extent of the complainant’s intoxication at the time she and he returned to ADFA on 22 or 23 June 2013. This Court has not seen or heard the witnesses giving their evidence on this case, which places it at a distinct disadvantage compared to the jury. The evidence on this issue does not, adopting the words of the plurality at M v The Queen at [129] above, contain discrepancies, display inadequacies, reveal taint or otherwise lack probative force.
With regard to the appellant’s state of mind concerning the extent of the complainant’s intoxication and her ability to give consent to the act of sexual intercourse, if the jury accepted the evidence of the complainant and Mr Davies they were entitled to find that the extent of the complainant’s intoxication was obvious. In determining whether the appellant held the requisite state of mind to commit the offence, the jury had to consider the appellant’s state of intoxication, but based upon his own evidence the jury could well have concluded this was not significant. The jury were entitled to infer that the appellant either knew that the complainant was so intoxicated as to be unable to consent to sexual intercourse, or was reckless as to that circumstance.
Having considered all of the evidence we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charge. Ground 4 of the appeal will therefore be dismissed.
Orders
As we already upheld the appeal on 1 November 2016, the appropriate additional orders following these reasons are:
(a)leave be granted to the appellant under r 5531 of the Court Procedure Rules 2006 (ACT) to raise grounds 2 and 3 in the Notice of Appeal;
(b)there will be a new trial on Count 1; and
(c)the publication of this judgment be prohibited until the conclusion of the trial on Count 1.
| I certify that the preceding one-hundred and sixty-one [161] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 11 May 2017 |
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