BG v The State of Western Australia

[2005] WASCA 45

BG -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 45

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 45
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:20/2004	Heard:	8 OCTOBER 2004
Coram:	MALCOLM CJ EM HEENAN J SIMMONDS J	Delivered:	11/03/05
No of pages:	30	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed Convictions quashed
Category:	B
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Parties:	BG THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Verdicts Whether verdicts of jury inconsistent Convictions quashed
Legislation:	Criminal Code (WA), s 7, s 8, s 24, s 36, s 326, s 333
Case References:	Brennan v The King (1936) 55 CLR 253 Dalla Volta v The Queen, unreported; CCA SCt of WA; Library No 930118; 5 March 1993 Davies and Cody v The King (1937) 57 CLR 170 Johns v The Queen (1980) 143 CLR 108 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 Miles v The Queen [2000] WASCA 364 Miller v The Queen (1980) 32 ALR 321 O (A Child) v The Queen, unreported; CCA SCt of WA; Library No 970219; 9 April 1997 Orr v The Queen, unreported; CCA SCt of WA; Library No 9036; 5 September 1991 R v Armstrong [2001] QCA 559 R v Drury (1971) 56 Cr App Rep 104 R v Kelly (1985) 38 SASR 561 R v Kirby (1972) 56 Cr App Rep 758 R v Nanette [1982] VR 81 Mackenzie v The Queen (1996) 190 CLR 348 Miles v The Queen, unreported; CCA SCt of WA; Library No 980748; 21 December 1998 Reppas v The Queen (1998) 20 WAR 178 BRK v The Queen [2001] WASCA 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BG -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 45 CORAM : MALCOLM CJ

EM HEENAN J
SIMMONDS J

HEARD : 8 OCTOBER 2004 DELIVERED : 11 MARCH 2005 FILE NO/S : CCA 20 of 2004 BETWEEN : BG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

For File No : CCA 20 of 2004

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : HEALY DCJ

File No : KAL 102 of 2002

Catchwords:

Criminal law and procedure - Verdicts - Whether verdicts of jury inconsistent - Convictions quashed

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Legislation:

Criminal Code (WA), s 7, s 8, s 24, s 36, s 326, s 333

Result:

Leave to appeal granted

Appeal allowed
Convictions quashed

Category: B

Representation:

Counsel:

Appellant : Ms C A McKenzie
Respondent : Mr K J Bates & Ms E M Peattie

Solicitors:

Appellant : McKenzie Lalor
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Brennan v The King (1936) 55 CLR 253
Dalla Volta v The Queen, unreported; CCA SCt of WA; Library No 930118; 5 March 1993
Davies and Cody v The King (1937) 57 CLR 170
Johns v The Queen (1980) 143 CLR 108
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Miles v The Queen [2000] WASCA 364
Miller v The Queen (1980) 32 ALR 321
O (A Child) v The Queen, unreported; CCA SCt of WA; Library No 970219; 9 April 1997
Orr v The Queen, unreported; CCA SCt of WA; Library No 9036; 5 September 1991
R v Armstrong [2001] QCA 559


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R v Drury (1971) 56 Cr App Rep 104
R v Kelly (1985) 38 SASR 561
R v Kirby (1972) 56 Cr App Rep 758
R v Nanette [1982] VR 81

Case(s) also cited:

Mackenzie v The Queen (1996) 190 CLR 348
Miles v The Queen, unreported; CCA SCt of WA; Library No 980748; 21 December 1998
Reppas v The Queen (1998) 20 WAR 178
BRK v The Queen [2001] WASCA 161


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1 MALCOLM CJ: This is an application for leave to appeal against conviction. On 7 February 2004, the appellant was convicted after trial of one count of unlawful detention contrary to s 333 of the Criminal Code (WA) (the "Code") and two counts of aggravated sexual penetration of the complainant without consent, contrary to s 326 of the Code, being respectively counts 1, 5 and 6 of a total of seven counts on the indictment. The appellant was found not guilty in respect of the remaining four counts. One of the appellant's three co-accused, KD, was also convicted of counts 1, 5 and 6. The other two co-accused, TG and BC, were also convicted of the two counts of aggravated sexual penetration of the complainant without consent. BC was also convicted of a third count of aggravated sexual penetration without consent, being count 7 on the indictment. The appellant and the other two co-accused were found not guilty in respect of that count.

2 The grounds of appeal as set out in the notice of appeal were as follows:

(1) With regards to count 1 on the indictment, the applicant's conviction on this count is inconsistent with the acquittal of the applicant on counts 2, 3 and 4 on the indictment, as all four relied upon the credibility of the complainant for the State to prove its case beyond reasonable doubt.

(2) With regards to counts 5 and 6 on the indictment, the verdicts were inconsistent with the State case against the applicant in that it was the State's case that the applicant was guilty of these offences on the basis of his mere presence, by reason of his prior unlawful conduct, but the applicant was acquitted of the offence said to constitute the prior unlawful conduct, meaning the convictions on counts 5 and 6 were not open on the evidence and no reasonable jury who had applied their mind properly to the facts in the case should have arrived at that conclusion.

(3) In all the circumstances the convictions are unsafe and unsatisfactory.

(4) In all the circumstances the convictions are unreasonable and cannot be supported having regard to the evidence.

(5) The fact that BC was convicted in respect of count 7 on the indictment in circumstances where the acquittal of his two co-accused made such conviction legally impossible demonstrates that the jury did not adequately comprehend

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the issues they were charged with determining and had not applied their mind properly to the facts.

3 At the hearing of the appeal, counsel for the appellant made an application for leave to amend the grounds of appeal so as to include an additional ground, namely that the learned trial judge misdirected the jury in respect of count 1 in that he failed to instruct them that the prosecution was required to prove beyond reasonable doubt that the appellant did not honestly and reasonably, but mistakenly, believe that the complainant consented to being present in the bedroom with the appellant. The application was not opposed and leave was granted to add the additional ground as ground 6.

The Prosecution Case at the Trial

4 The prosecution case at the trial was that the alleged offences occurred on the night of Friday, 1 February 2002. The complainant, M, was 21 years old and resided in Kalgoorlie. On the night of the alleged offences the complainant was visiting friends. At about 11 o'clock at night she left her friend's house and walked towards the Lionel Street markets.

5 At the markets she met with KD and BC. She was acquainted with both men. The three of them decided to go to the 151 Nightclub in Kalgoorlie. They caught a taxi from the markets into the city centre. There they bought some cigarettes and some beer, and after a while decided to go to Paddy's Bar. M was refused entry to the bar because she lacked proof of age, so the three of them returned to the 151 Nightclub. At the nightclub they met the appellant and his brother, TG. The complainant was also acquainted with these two men.

6 The five of them stayed at the nightclub for some hours, dancing and consuming alcohol. At around 4 am the complainant indicated to the four men that she needed to go home because she was scheduled to catch the train to Perth that morning. The four indicated that they would go with her in a taxi, drop her off at her house, continue on and pay the taxi fare. They subsequently caught a taxi but, on arriving at the complainant's residence, all of them got out of the taxi. There was a dispute about who was going to pay the fare. It was alleged by the State that, after the taxi driver was paid, the four men did not continue in the taxi, but remained at the complainant's residence. At that point it was around 5 am.

7 The complainant gave evidence that, shortly after arriving at the house, KD called her into a bedroom at the front of the house. The room

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contained a change table for a baby, a mattress and a box of toys. The complainant gave evidence that she went into the room with KD because she thought that he wanted to discuss the fact that he had previously fancied her sister.

8 The appellant followed her into the bedroom, closed the door behind him and locked it. The complainant saw and heard the door being locked. She went straight to the window and opened it. She went to get out of the window, but KD grabbed her and threw her onto a mattress. The complainant's evidence was that she landed on the mattress on her back and the appellant then sat on her chest area and held both of her arms by her side. The prosecution case was that these acts constituted the offence of unlawful detention the subject of count 1 on the indictment.

9 The complainant gave evidence that she began telling the appellant to get off, but both he and KD started removing her clothes. KD removed her shorts and underpants and the appellant pushed up her top and bra so her breasts were exposed.

10 KD then moved towards the complainant's head, knelt down and forced his penis into her mouth. He repeatedly told her to suck it. The complainant tried to turn her head to stop him from doing it, but was unable to. That conduct was alleged to have constituted the offence of aggravated sexual penetration without consent, the subject of count 2 on the indictment.

11 In the meantime, the appellant moved down, lay on top of her and penetrated her vagina with his penis. That act was alleged to have constituted the offence the subject of count 3 on the indictment.

12 The complainant gave evidence that, knowing that TG and BC were in the house, she screamed out for them for help. The complainant heard TG say, "The door's locked," to which she replied, "Grab a knife to unlock the door. Hurry up". The door opened, and TG and BC entered the room. KD still had his penis in the complainant's mouth and the appellant still had his penis in her vagina. TG and BC stood in the room, but made no effort to help the complainant.

13 The complainant alleged that about that time the appellant got off her. KD then turned her onto her side and attempted to penetrate her anus with his penis. The complainant asked him not to, and he was unsuccessful in his attempt to penetrate her anus. This attempt was said to constitute the offence the subject of count 4 on the indictment. The complainant gave evidence that she then grabbed a pillow and placed it

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over her mouth. KD pulled the pillow away and again inserted his penis into her mouth. That conduct constituted the offence the subject of count 5 on the indictment.

14 BC was still standing in the room watching and the complainant yelled out to him, "Do you think I'm a slut? What are you trying to do?" BC replied, "No, I don't think you're a slut."

15 The complainant alleged that while KD penetrated her mouth with his penis, TG, who was also standing in the room, got on top of her and penetrated her vagina with his penis. This was the offence the subject of count 6 on the indictment. At some point while this was occurring, the complainant began to choke because KD was pushing his penis so far down her throat. TG told KD, "You're choking her. Stop it."

16 The complainant gave evidence that while TG was penetrating her vagina with his penis and KD was penetrating her mouth, BC first attempted, then succeeded, in penetrating her vagina with his fingers. That was alleged to have constituted the offence the subject of count 7 on the indictment.

17 It was further alleged that after TG had told him to stop, KD, who still had his penis in the complainant's mouth, said to her, "Make me come if you want me to stop." After a while he removed his penis from her mouth and he, the appellant and BC left the room, leaving TG in the room with her. The complainant then told TG to lock the door. While he was doing that she quickly put on her shorts and pulled her top and bra down. TG then approached her. She pushed him back. TG then stumbled and the complainant climbed out of the window and ran away from the house.

18 The complainant gave evidence that she then ran straight to the house of her friend BW who let her in. She told BW that "four guys have just gang raped me". She was crying and she complained to BW of feeling very sick and sore.

19 BW suggested that she call the police, but the complainant said, "No, don't call the police". Her evidence was that she was concerned that calling the police would cause the various families difficulties. The complainant stayed at BW's house for a short while and was then taken home. In the meantime two men, who had been at BW's house when the complainant arrived, went back to the complainant's house to see if the offenders had left.

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20 About 45 minutes after the complainant got home her mother arrived. The police arrived shortly afterwards. The police took the complainant to Kalgoorlie Regional Hospital. The complainant initially left the hospital because she was in a distressed state, but later returned and was admitted for four days. During the course of the hospital stay, the complainant was examined by a doctor who later prepared a medical report.

21 At the time of the offences OL, a 56 year-old woman, was living next door to the complainant. OL gave evidence that at around 5 am on the date of the offences, she was awakened by the sound of a dog barking. She also gave evidence that she heard a female screaming and what sounded like fighting coming from the complainant's address. She alleged that she later heard the sound of a female sobbing and the sound of male voices coming from the complainant's backyard.

The Evidence of the Appellant

22 In the police record of interview the appellant admitted that he had gone into the room with the complainant and KD, but denied touching the complainant or having sex with her. He admitted to closing the door, but claimed he had done it for privacy, and denied that either he or KD had detained the complainant in the room. That was also the gist of his evidence at trial.

23 He admitted under cross-examination that he had straddled the complainant and fondled her breasts while she had performed oral sex upon KD. He claimed that these actions were all consensual. The appellant emphatically denied, both in the police record of interview and at trial, that he had sexually penetrated the complainant's vagina. He also denied any involvement in the activities the subject of the remaining counts on the indictment.

Ground 3

24 It is convenient to deal with ground 3 first. Ground 3 of the appeal was that in all the circumstances the convictions were unsafe and unsatisfactory.

25 A conviction will not be unsafe or unsatisfactory if, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In M v The Queen (1994) 181 CLR 487 at 493, Mason, Deane, Dawson and Toohey JJ referred to the following passage in Davies and Cody v The King(1937) 57 CLR 170 in

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which it was held by Latham CJ, Rich, Dixon, Evatt and McTiernan JJ that a conviction will be set aside:

" … whenever it appears unjust and unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."

26 In M v The Queen at 493, their Honours went on to say that:

"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."

27 Their Honours went on to say at 494 that:

"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

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innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

28 Their Honours also made it clear that in such a case as this, the Court proceeding in the manner outlined does not substitute trial by a Court of Appeal for trial by jury, for as the joint judgment made clear at 494 – 495:

" … 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."

29 The test in M v The Queen is now accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones v The Queen (1997) 191 CLR 439 at 452 per Gaudron, McHugh and Gummow JJ.

30 Ground 3 contains no particulars. The substantive contentions which would amount to particulars of ground 3 are articulated in grounds 1 and 2, and will be dealt with in the context of those grounds.

Ground 1

31 Ground 1 was that the appellant's conviction on count 1 on the indictment was inconsistent with his acquittal on counts 2, 3 and 4, because all four counts relied on the credibility of the evidence of the complainant in order for the prosecution case to be proved beyond reasonable doubt.

32 The mere fact that a jury has returned what appear to be inconsistent verdicts does not mean that the court is necessarily required to quash the conviction: R v Drury (1971) 56 Cr App Rep 104 at 105 per Edmund Davies LJ. His Lordship made it clear that there were cases in which it would be proper for the Court to conclude that notwithstanding the inconsistency, the guilty verdict must stand, depending on the facts of the case.

33 In Dalla Volta v The Queen, unreported; CCA SCt of WA; Library No 930118; 5 March 1993 at 5, Ipp J (with whom Malcolm CJ and Franklyn J agreed) said that the approach to be adopted when it has been argued that inconsistent verdicts had been arrived at was expressed by Edmund Davies LJ in R v Kirby (1972) 56 Cr App Rep 758 at 759 – 760 to be as follows:

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"[T]here is no general rule that the mere fact that a jury has returned inconsistent verdicts means that the Court of Appeal is obliged ex necessitate to quash any convictions which may have resulted. Each case depends on its own facts. The approach which this Court in Durante (1972) 56 Cr App R 708, said is the proper one was indicated by Devlin J in the unreported case of Stone, heard in the Court of Criminal Appeal on December 13, 1954. The learned judge there said: 'When an appellant seeks to persuade this court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably have come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.' See also R v Hunt [1968] 2 QB 433 at 438 per Lord Parker."

34 This approach has been followed in Australia in R v Kelly (1985) 38 SASR 561 at 562 per Zelling J; and see R v Nanette [1982] VR 81 at 83 per McInerney J and Orr v The Queen, unreported; CCA SCt of WA; Library No 9036; 5 September 1991 at 9 per Wallwork J.

35 It was submitted by counsel for the appellant that the State had acknowledged that the complainant's credibility was vital to their case. Counsel also submitted that the appellant was acquitted on counts 2, 3 and 4 because the jury did not accept the complainant's evidence beyond a reasonable doubt. Both the appellant and his co-accused KD were acquitted on each of counts 2, 3 and 4. It was submitted that, in regard to each of these counts, the only evidence in support of the allegation was the evidence of the complainant. In each of the counts, the evidence of KD and the appellant was in agreement. KD had stated in his video record of interview that the sexual penetration the subject of count 2 was consensual. The appellant's evidence was that the penetration was consensual. In respect of counts 3 and 4, both the appellant, in his evidence, and KD, in the video record of interview, denied that the alleged vaginal and anal penetration the subject of counts 3 and 4 had occurred at all.

36 It was submitted on behalf of the appellant that the allegations giving rise to count 1 were very similar, if not identical, to the allegations giving rise to counts 2, 3 and 4 and that no reasonable jury could find that the

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complainant lacked credibility in respect of counts 2, 3 and 4, but accept her evidence beyond reasonable doubt in relation to count 1.

37 Counsel for the respondent submitted that the acquittal of the appellant on counts 2, 3, 4 and 7 could be explained on a basis that did not damage the credibility of the complainant with respect to count 1 and the remaining counts on the indictment. It was submitted that in order to convict the appellant on count 2 of the indictment, it was necessary for the jury to find beyond reasonable doubt, not only that the complainant did not consent to the sexual penetration, but also that the appellant did not have an honest and reasonable but mistaken belief that the complainant consented to the penetration. That required the jury to turn their minds to the appellant's subjective impressions of what was occurring and to consider whether, in the circumstances, such a belief was reasonable.

38 Counsel for the respondent submitted that, during the trial, evidence was adduced, both by the appellant and TG, which was relevant to the question of the appellant's subjective impressions. The appellant and TG both gave evidence that they and their co-accused had been engaged in what amounted to flirtatious behaviour with the complainant at the nightclub prior to the offences.

39 In cross examination, the complainant denied that she had flirted with any of the accused, but later accepted that KD had attempted to grab her bottom and that she had been involved in a game whereby the accused men had put ice blocks down her top and she had reciprocated.

40 It was submitted on behalf of the respondent in respect of count 3, that the appellant had denied that he had penetrated the complainant's vagina with his penis in both his video record of interview and his evidence at trial, and that, alone of all the alleged offences of sexual penetration on the indictment, the evidence of the complainant was uncorroborated with respect to count 3. The effect of this submission was that this was the only count in which the complainant's evidence was uncorroborated and that this was sufficient to give rise to a reasonable doubt in the mind of the jury.

41 Counsel for the respondent also submitted that the complainant's evidence in relation to count 4, the anal penetration by KD, was unclear. The complainant had not given evidence in relation to this count at the preliminary hearing, but had referred to it in her police statement. Under cross-examination she had accepted that it could have been "something else that she felt in her and not [KD's] penis". The lack of clarity in the

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complainant's evidence in respect of this count may have led the jury to have a reasonable doubt as to whether KD had committed the relevant offence.

42 In relation to count 1, counsel for the respondent submitted that the evidence of TG corroborated the complainant's evidence that the appellant and KD detained her without her consent. TG had stated in evidence that the bedroom door was locked and that he opened it with a knife on request from the complainant. He also said that when he entered the bedroom the appellant was sitting on the complainant.

43 The State case against the appellant in relation to count 1 was that he detained the complainant without her consent by locking the door and by sitting on her. The appellant's sitting on the complainant was also a substantial element of the State case against the appellant in relation to count 2. Counsel for the State put it to the jury that, "… he sat on her originally, probably, you may think, holding her down while [KD] was up to what he was doing".

44 Counsel for the appellant submitted that the evidence of the appellant having restrained the complainant on the bed by sitting on her, which also comprised part of the scenario alleged to amount to the unlawful detention the subject of count 1, was simultaneous to, and a component of, the events which were alleged to constitute the offences the subject of counts 2, 3 and 4.

45 The basis of the defence of the appellant and his co-accused in respect of these offences was that they believed that the complainant had consented to the relevant sexual acts. Evidence of earlier flirtatious behaviour between the complainant and the appellant's co-accused was led in support of that contention. Counsel for the appellant submitted that, in those circumstances, if the jury was not satisfied that the appellant did not have an honest and reasonable but mistaken belief in consent in relation to count 2, then they could not be so satisfied in relation to count 1.

46 In Miles v The Queen [2000] WASCA 364 at [65] I said:

"… the question is whether the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at the conclusion in question. If there is a proper way by which this Court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion must be accepted. If there is some evidence to support the

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verdicts that are said to be inconsistent, it is not the role of this Court, upon this ground, to substitute its own opinion of the facts for one which was open to the jury: Mackenzie v R (1996) 190 CLR 348 per Gaudron, Gummow and Kirby JJ at 366-367."

47 It is therefore necessary to examine the possible means by which the jury could have arrived at each of its verdicts, in order to determine whether there is a proper basis on which the jury could have arrived at them.

48 In my opinion, there are two ways in which the jury could have arrived at its verdicts with respect to counts 1, 2, 3 and 4. The first is that the jury accepted the evidence of the complainant beyond reasonable doubt in respect of count 1, but rejected her evidence or had a reasonable doubt about her credibility or the reliability of her evidence in respect of counts 2, 3 and 4. On the evidence, there is no reasonable basis upon which the jury could have reached such a conclusion. The issue of the complainant's consent or lack thereof was of primary consideration in determining the guilt or innocence of the appellant and his co-accused in respect of counts 1 and 2. There was no dispute that the complainant, the appellant and KD entered the room together, that the door was locked and that sexual activity between the complainant and KD subsequently occurred. Further, it was a common fact that the sexual activity the subject of count 2 occurred immediately after the entry into the room and the events allegedly the subject of count 1. If the jury had accepted the evidence of the complainant beyond reasonable doubt in respect of count 1, and had a reasonable doubt as to her evidence on counts 2, 3 and 4, they must have accepted beyond reasonable doubt that she did not consent to being in the room with the appellant and KD, but had a reasonable doubt about the credibility of the complainant's evidence that she did not consent to the oral sexual penetration the subject of count 2. With respect to counts 3 and 4, the jury may have had a reasonable doubt about the reliability of the complainant's evidence on the basis that both the appellant and KD denied that the offences had occurred and that the complainant's evidence was uncorroborated in respect of count 3 and unclear in respect of count 4. Alternatively, the jury may have had a reasonable doubt about the credibility of the complainant's testimony with respect to counts 3 and 4.

49 I accept the submission of counsel for the appellant that no reasonable jury could have found that the complainant lacked credibility with respect to counts 2, 3 and 4, but accepted her evidence beyond reasonable doubt with respect to count 1. In my opinion, a reasonable

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jury could accept the evidence of the complainant beyond reasonable doubt with respect to count 1, and have a reasonable doubt about the reliability of her evidence as to counts 3 and 4. In my opinion, however, no reasonable jury could accept the complainant's evidence beyond reasonable doubt with respect to count 1 while having a reasonable doubt about her credibility with respect to count 2.

50 The second way in which the jury could have arrived at its verdicts is that put forward by counsel for the respondent, namely that, in relation to count 2, the jury may have had a reasonable doubt as to whether the appellant and KD had an honest and reasonable but mistaken belief that the complainant consented to the sexual penetration pursuant to s 24 of the Code. Section 24 provides that:

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

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

51 In R v Armstrong[2001] QCA 559, the appellant had been convicted of one count of deprivation of liberty and one count of assault occasioning bodily harm, and acquitted of one count of rape and one count of indecent assault. The appellant appealed on the grounds that the verdicts were inconsistent and that the complainant had given inconsistent evidence. The appellant and complainant, who were acquainted, dropped in at the appellant's house on the way to a hotel. They shared some marijuana, and when the complainant attempted to open the door to leave for the hotel, the appellant slammed the door shut and pushed the complainant back into the room. The complainant struggled and the appellant, who was physically much larger, forced her to the floor and held her there until she stopped struggling. During the struggle he punched her several times, causing her to bleed from the eye. The appellant then removed her clothing and had sexual intercourse with her. He then told her to have a shower and she obeyed. During her shower the appellant washed the blood from her face and fondled her breasts. The appellant would not let her leave, but told her to stay the night. He allowed her to leave in the morning, telling her not to disclose the assault to anyone. McMurdo P, Williams JA and Atkinson J said at [6]:

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"… The inconsistency between the verdicts of guilty of deprivation of liberty and not guilty of rape and indecent assault is more problematic. It was possible for the jury, consistent with its verdict of not guilty to rape and indecent assault, to have convicted the appellant of deprivation of liberty prior to the alleged rape offence. But a conclusion that the prosecution had not established beyond reasonable doubt that the appellant did not honestly and reasonably believe the complainant was consenting to sexual intercourse must also mean, on these facts, that from that point at least, the prosecution failed to prove that the appellant did not honestly and reasonably believe the complainant was consenting to being confined in the bedroom. The prosecution case was that the appellant had unlawfully detained the complainant throughout the evening in question. No special verdict was sought as to whether the offence of deprivation of liberty related to the entire period or only the period before the intercourse. The jury were not told, as they should have been on the facts of this case, that before they could convict the appellant of the offence of deprivation of liberty, the prosecution must prove beyond reasonable doubt that the appellant did not honestly and reasonably believe the complainant was consenting to her stay in the bedroom. Had the jury been so directed, the only verdict consistent with their verdicts on the charges of rape and indecent assault would have been not guilty of the offence of deprivation of liberty after the commencement of sexual intercourse. As no distinction was made in the trial between the two timeframes, the verdict of guilty of deprivation of liberty cannot stand and a verdict of acquittal must be entered."

52 In relation to counts 3 and 4 in the present case, the lack of corroboration and clarity of the complainant's evidence and the outright denials by the appellant and KD may have led the jury to have a reasonable doubt as to whether the complainant's evidence in respect of those offences was reliable.

53 In relation to counts 1 and 2, in my opinion it is not possible to reconcile the verdict on count 1 with the verdict on count 2. The jury must have accepted the complainant's evidence in relation to count 1 that the appellant had sat on her. The evidence at trial established that the locking of the door served to prevent persons from entering the room from outside, but would not have prevented the complainant from leaving the room. This evidence could not have been reasonably construed by the

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jury as of itself constituting unlawful detention. Given the factual continuity between the offences the subject of counts 1 and 2, in my opinion, it is not possible to reconcile the conclusion that the jury had a reasonable doubt whether the appellant had an honest and reasonable but mistaken belief that the complainant consented to oral penetration by KD's penis, while being satisfied that the defence of honest and reasonable but mistaken belief had been negatived in relation to the unlawful detention, when the appellant's involvement in both offences consisted in his sitting upon the complainant. There was evidence that supported an inference that the appellant may have had an honest and reasonable but mistaken belief that the complainant consented to what had taken place prior to the complainant and the accused arriving at her house. There was no evidence to support an inference of a belief on the part of the appellant of consent by the complainant that may have arisen in the appellant's mind after he had commenced to sit on the complainant, but before KD had inserted his penis into her mouth.

54 Further, if the jury did not find that the appellant's involvement in the offence the subject of count 1 consisted in his sitting upon the complainant, but rather that the offence consisted of another act or acts which had the effect of denying the complainant a possible exit from the room, no reasonable jury could entertain a reasonable doubt that the appellant and KD had an honest and reasonable but mistaken belief that the complainant had consented to the oral sexual penetration by KD, while finding beyond reasonable doubt that KD and the appellant could not have held an honest and reasonable but mistaken belief that the complainant had consented to be present in the room with them.

55 For these reasons, I consider that ground 1 has been made out.

Ground 2

56 The second ground of appeal was that the conviction of the appellant on counts 5 and 6 on the indictment was inconsistent with the State case against the appellant, in that the State case was that the appellant was guilty of those offences by virtue of his mere presence, on the basis that his prior unlawful conduct amounted to counselling, procuring or encouraging the offences the subject of counts 5 and 6. However, the appellant was acquitted in respect of all the offences involving the alleged prior unlawful conduct. It follows that the convictions on counts 5 and 6 were not open on the evidence, as no reasonable jury who applied their mind properly to the facts in the case could have arrived at that conclusion.

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57 Counsel for the prosecution outlined to the jury the State case against the appellant in respect of counts 5 and 6 as follows:

"… members of the jury, if you accept [the complainant]'s evidence, [the appellant] has been a party to a deprivation of liberty, he was there when [KD] threw her onto a mattress, he was there when [KD] forced his penis into her mouth, he was there when he sat on her originally, probably, you may think, holding her down while [KD] was up to what he was doing, and then had sex with her. He was in it up to his eyeballs from the beginning, and to suggest that because he got off and stood in the room and watched the others he is not doing anything wrong … did he disassociated [sic] himself from it? Did he go to another room and say 'I don't want any more part of this. This is revolting, this is shocking, this shouldn't be happening?' … The fact that he was right in it from the start, the fact that he was one of the initiators and the fact that he did not disassociate himself from this, didn't help her in any way, shape or form, makes him as criminally culpable as those three that were doing the acts at the time…"

58 Sections 7 and 8 of the Code provide that:

"7. Principal offenders

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say ¾


(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;

(d) Any person who counsels or procures any other person to commit the offence.

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In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

8. Offences committed in prosecution of common purpose

(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person ¾

(a) withdrew from the prosecution of the unlawful purpose;

(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and

(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence."

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59 The State case against the appellant relied upon the provisions in s 7(b) or s 7(c) of the Code.

60 In his summing up, the learned trial Judge said:

"Now in relation to [the appellant] he is said to have committed one offence and that's the offence of putting his penis in her vagina as a principal but in relation to the other offences with the exception of count 1, he is said to be an aider in aiding the other people who are the principal offenders in committing the other offences."

61 The learned Judge went on to discuss the individual counts on the indictment in more detail. In relation to the appellant's alleged role in count 2 his Honour said:

"In relation to [the appellant], the same thing arises there in relation to this offence of - not the same thing arises. In this offence he is not said to be the principal offender. He is said to be aiding [KD] in carrying out his offence of putting his penis in her mouth.

What do we mean by aiding in the circumstances of this offence? The law says that various people can be guilty of an offence; not only the person who commits the offence but also somebody who aids that person or enables that person to commit the offence, and they are just as guilty as each other. But it's not simply enough to be there at the same time to become an aider. If you're walking down Hannan Street and you see a brawl outside one of the hotels and you just sit there watching what's going on you're not aiding the person who is belting up the other person simply by being there. If you say, 'Go on, hit him again,' or 'Kick him when he's down' or whatever else then you're aiding, if you're encouraging the person to commit the offence; but simply being there isn't enough.

What the prosecution says here is that isn't [sic it's] not simply the question of [the appellant] being in the same room. The prosecution says [the appellant] is aiding [KD] - [the appellant] I'm talking about - by sitting on her chest while he is penetrating her mouth with his penis. In this case [the appellant] says, 'I'm not guilty of that. I wasn't sitting on her chest for that purpose. She was consensually putting his penis in her mouth. I was

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simply there engaging in sexual contact with her. I had rolled up her top and her bra and I was fondling her breasts, and I wasn't acting in any way to hold there against her will or to assist [KD] putting his penis in her mouth and restraining her while that occurred.' He says that she appeared to be sucking [KD]'s penis. The prosecution says that he is guilty of being an aider because he was sitting on her chest and held her there against her will. He had locked the door from the inside. She said she heard the door click. It wasn't simply a question of the door having already had the latch on and it being closed to, that the door was clicked shut and the prosecution says that he didn't associate himself in any way from what [KD] was doing either by word or by deed, by saying "Don't do it" or by going out of the room when that was occurring. He didn't disassociate himself at all.

But one must be careful to remember that there must be an intentional encouragement before a person can be an aider. A person has to intentionally encourage the other person to commit the offence. Nobody can be convicted of aiding another person unless that person knowing that the other person is going to commit an offence does so intentionally and he knows what is happening and then goes and encourages that person in doing it by his presence there, and doesn't disassociate himself with what is going on."

62 In O (A Child) v The Queen, unreported; CCA SCt of WA; Library No 970219; 9 April 1997 at 7, I said:

"Mere presence at the commission of an offence will not of itself be sufficient to constitute aiding. There must be, at least, a positive encouragement: R v Corey [1882] 8 QBD 534. In R v Clarkson, Carroll and Dodd [1971] WLR 1402 it was held that on a charge of aiding and abetting a rape on the basis of continuing and non-accidental presence, the prosecution must establish actual encouragement of the commission of the offence, as well as an intention to encourage. In R v Beck [[1990] 1 Qd R 30] at 38 Macrossan J (as he then was) said: 'It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided.' Macrossan J however acknowledged that

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voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. Intentional encouragement may also be inferred from expressions, gestures or actions intended to signify approval."

63 Alternatively, the State case against the appellant could be said to have relied upon s 8 of the Code, in that, as one of the "initiators" of the offending, the appellant was alleged to have formed a common intention to prosecute an unlawful purpose with his co-accused pursuant to s 8(1), namely, to engage in non-consensual sexual activity with the complainant, and that the appellant had not, pursuant to s 8(2), withdrawn from the prosecution of the unlawful purpose, communicated any such withdrawal to his co-accused, or done anything to prevent the commission of the offences the subject of count 5 and 6. In Brennan v The King (1936) 55 CLR 253 at 259 Starke J said that:

"'… aiders and abetters are only liable, according to English law, for such crimes committed by principals in the first degree as are done in the execution of their common purpose. If any of the offenders commits a crime foreign to the common criminal purpose, the others are neither principals in the second degree, nor accessories, unless they actually instigate or assist in its commission."

64 In Johns v The Queen(1980) 143 CLR 108 the High Court held that an accessary before the fact bears, as does a principal in the second degree, a criminal liability for an act that was within the contemplation both of himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention. In other words, the act done must be one which was contemplated as a possible incident of the originally planned venture: Johns at 118-122 per Stephen J. Evidence of an express agreement to establish the existence and scope of criminal common purpose is not required, but may be inferred from all the relevant facts: Miller v The Queen (1980) 32 ALR 321.

65 On the prosecution case there was no positive evidence that the appellant did or said anything during the commission of the offences the subject of counts 5 and 6 to indicate that he was providing support or backup.

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66 In my opinion, given that the jury acquitted the appellant on counts 2, 3 and 4, it must be concluded that the jury did not accept beyond a reasonable doubt that the appellant played any role in the commission of those offences. Since there was no evidence that the appellant played any role beyond his mere presence in the offences the subject of counts 5 and 6, it follows that the jury must have found that the appellant was a party to those offences only through his presence, on the basis that he aided in their commission by virtue of his involvement in the earlier offence the subject of count 1, the unlawful detention.

67 I have concluded that a reasonable jury properly applying its mind to the evidence could not have convicted the appellant of count 1 and acquitted him of count 2, and that as a consequence, the appellant's conviction on count 1 cannot stand. It follows that there is no longer a proper basis on which the jury could have found that the appellant had aided in the commission of the offences the subject of counts 5 and 6.

68 Mere presence is not sufficient to establish that the appellant aided in the commission of the offences, and if the appellant's conviction on count 1 falls away, there are no longer any reasonable grounds to conclude that the appellant had any involvement in counts 5 and 6 beyond his mere presence. It follows that I would uphold ground 2.

Ground 4

69 Ground 4 of the appeal was that in all the circumstances the convictions are unreasonable and cannot be supported having regard to the evidence. This ground is in effect a restatement of the implications of the arguments found in grounds 1 and 2 and does not add anything to those grounds. It follows from what I have already written that it is unnecessary to give separate consideration to ground 4.

Ground 5

70 Ground 5 of the appeal was that the conviction of BC in respect of count 7 on the indictment, in circumstances where the acquittal of his two co-accused made such conviction legally impossible, demonstrated that the jury did not adequately comprehend the issues they were charged with determining and had not applied their mind properly to the facts.

71 This ground refers to the conviction of BC of the offence of aggravated sexual penetration without consent. As previously stated, the prosecution case was that while TG was penetrating the complainant's vagina with his penis and KD was penetrating her mouth with his penis,

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BC penetrated her vagina with his fingers. The circumstance of aggravation in count 7 was that BC committed the offence in company with his co-accused. As both BC's co-accused were acquitted of the offence, it was not open to the jury to bring in a verdict that the circumstance of aggravation was proved in respect of the offence committed by BC. The apparent inconsistency in the jury's verdict in respect of count 7 was the subject of comment by the clerk of arraigns at the time it was delivered, but no point was taken by BC's counsel at the time. However, BC is not an appellant in this matter, and the appellant was not convicted of count 7. The learned trial Judge instructed the jury to consider each count on the indictment separately. The issue whether the jury adequately comprehended the issues they were charged with determining or applied their mind properly to the facts in respect of count 7 is irrelevant to the appellant's appeal.

Ground 6

72 The additional ground of appeal, included with leave of the Court as ground 6, was that the learned trial Judge misdirected the jury in respect of count 1 in that he failed to instruct them that the prosecution was required to prove beyond reasonable doubt that the appellant did not honestly and reasonably but mistakenly believe that the complainant consented to being present in the bedroom with the appellant.

73 Section 36 of the Code provides that:

"The provisions of this chapter apply to all persons charged with any offence against the statute law of Western Australia."

74 In R v Armstrong (supra), the Queensland Court of Appeal quashed the appellant's conviction for deprivation of liberty, finding that the trial Judge should have directed the jury that the prosecution was required to prove beyond reasonable doubt that the appellant did not honestly and reasonably believe that the complainant was consenting to be confined in the bedroom. That conviction was quashed in the context that the jury had acquitted the appellant of a related rape charge, and that the prosecution case had not made clear whether the deprivation of liberty charge related to the period immediately before the alleged rape, or to the entire evening in question.

75 In the present case, the prosecution case in respect of the charge of unlawful detention relied on evidence of a number of occurrences which, together or individually, were said to constitute unlawful detention, namely, the evidence of KD closing and locking the door, KD pushing the

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complainant onto the mattress, and the appellant sitting on the complainant. The last of these was contemporaneous with the alleged unlawful sexual penetration the subject of count 2. As in R v Armstrong, in this case the prosecution did not specifically argue whether the unlawful detention was confined to the period immediately prior to the offences the subject of counts 2, 3 and 4, or whether it continued during the commission of those offences, or indeed during the commission of the remaining offences on the indictment.

76 In his directions to the jury, the learned trial Judge said in relation to count 1 that:

"Looking at the first offence on your indictment, the offence of unlawful detention, what needs to be proved in relation to that? In order to prove that that offence occurred at the time and the place alleged, the prosecution has to prove each of these matters beyond reasonable doubt: that the offenders named are the two accused men, namely, [KD] and [the appellant]; secondly that [the complainant] was detained against her will; and, thirdly, that the detention was unlawful."

77 His Honour pointed out that the identities of the relevant accused were not in issue. He went on to say:

"The next thing the prosecution has to prove beyond reasonable doubt is that she was detained. A person is said to be detained when the person is deprived of their personal liberty. They are being confined or dispossessed of their freedom to do as - I mean, in this case [the complainant] was confined and dispossessed of her freedom to do what she wanted to do, namely, to leave the room when she chose to leave the room. What the prosecution has to prove is that what those two men did was to keep her in that room against her will when she would rather have got out of the room or left or not been there. She was not able to do that because she was kept in the room by them. The final thing the prosecution has to prove is that the detention was unlawful; in other words, that it wasn't in any way authorised or justified or excused. Of course, some detentions can be lawful. When people are locked up in gaol, that's lawful. When people are apprehended by the police, the police are not letting people do what they want to do, because they're suspected of committing a crime, that's lawful and the police aren't committing an offence in not letting them go.

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There is no suggestion in this case that if she was kept in that room, if she was kept in that room, there is any justification for doing so. The issue in this case is: was she detained in the room?

…When you look at the men's evidence in relation to this - that is, [KD] and [the appellant] - you look at that in light of what the prosecution case was; namely, that they held her in that room against her will, called her in there, two of them are there, the door was locked from the inside and she was thrown by [KD] on to the mattress, after trying to get out the window when she thought something bad was going on, and then when she was on the ground [the appellant] sat on her chest while [KD] commenced to do things to her.

When you're looking at this charge it's simply the unlawful detention in the room. For her to be unlawfully detained that had to have happened. Her ability to leave the room has to have been removed from her by her being detained in the room by those two men. The issue is there that they say - each of them basically says the same thing, that there was no detention in the room at all, that she had gone to the room voluntarily. She had taken a mattress up to the room. She called them both to the room. They had gone into the room. The door was closed for privacy. It had a privacy lock on the inside so it wasn't a door that was locked from the outside that you need to open from the outside. It was something that could be opened from the inside; and that she was not detained in the room against her will at all. She was simply there for the purpose of having some contact with them. Her ability to leave the room was not removed from her at all. She was there and could have left when she wanted to but she didn't choose to. She wasn't sat on for the purpose of keeping her there. She wasn't locked in the room for the purpose of keeping there to do what they wished to do with her. So you will then have to make a decision in relation to whether or not she was detained because [KD] said that he didn't detain her in the room, that she called them into the room and she remained in that room voluntarily and [the appellant] said that his sitting on her was not for the purpose of detaining her in the room but for the purpose of having some sexual contact with her to which she was not adverse [sic averse] and not against her will. So in relation to that matter both of the men say they were not detaining her against her will. She says that she was.

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Now you will have to make a decision as to whether or not her ability to leave the room was - she wanted to leave the room and she was unable to leave the room because of what they did with her."

78 In relation to count 2, the learned Judge's summing up was as follows:

"The next offence that you are dealing with then is the second offence on the charge which involves them and the principal offender is said to be [KD] when he puts his penis in her mouth without her consent. Now what elements have to be proved - and [the appellant] aided him doing that and they were both acting in company at the same time when that offence was being committed. What has to be proved in order to prove that that offence was committed? I am not going to repeat these elements because these elements are the same in relation to all the offences that follow. The particulars may be different in relation to what was put in and where it was put in but the elements of the sexual penetration are the same in relation to the remaining six charges. In order to prove that those offences occurred at the time and the place alleged the prosecution must prove each of the following elements beyond reasonable doubt: again, the identify of the offender; that the offender sexually penetrated her in the way that's set out in the indictment either with the penis or with the finger - or in the mouth, or penis in the vagina or a finger in the vagina; that the penetration was without the consent of [the complainant] and in each of the cases that the circumstance of aggravation was that they were in company, each of them was in company with each other.

… The issue and the principal issue I suppose in this case, in this charge as in all the charges, is in relation to whether or not she consented, because the prosecution has to prove that the penetration was without her consent. The Criminal Code gives you some guidance as to what consent means in the context of this type of offending behaviour because it says that consent needs to be freely and voluntarily given. That doesn't in any way affect the ordinary meaning attributable to the word 'consent' but you should bear in mind that consent isn't freely and voluntarily given if it's obtained by force, if it's obtained by intimidation, as is said to have been the case here. Now, where an act would be an offence if done without consent - the failure

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of [the complainant] to offer any physical resistance doesn't itself constitute consent. A person doesn't have to struggle and suffer any injury or potentially suffer injury before they are said to consent. Lack of struggling doesn't mean that a person is consenting. A person may struggle and that would show that they're not consenting but the fact that a person doesn't struggle doesn't mean that they are consenting because a person may in the circumstance the prosecution alleges here feel overborne, in this offence, because there are two men in the room and there is no hope of escaping when they are bigger than she is and she simply has to go along with what is happening. The fact that she has not struggled doesn't mean that she's consenting. The fact that the doctor didn't find any signs of bruising or physical signs on her doesn't mean that she was consenting because consent simply means what it says. It has to be consent which is freely and voluntarily given to what is happening to her. She says that in relation to this offence when [KD] put his penis in her mouth she did not consent to him doing that, she didn't want him to do that and she had no wish that that occur. If she wasn't consenting, if she wasn't consenting, and you come to the view that she didn't consent, then you have to consider the question as to whether [KD] had an honest and reasonable but mistaken belief that she was consenting because if he had an honest and reasonable but mistaken belief that she was consenting he is not criminally responsible because if a person acts on an honest and reasonable but mistaken belief then they can't be responsible for their actions. So a person who penetrates in this way, putting his penis in her mouth, under an honest and reasonable but mistaken belief that the other person was consenting isn't criminally responsible for that sexual penetration to any greater extent than if the real state of events had been such as he believed; namely, that she was consenting. Here [KD] has raised the issue that he acted under a reasonable and honest but mistaken belief that [the complainant] was consenting and a person who acts under that honest and reasonable but mistaken belief of consent isn't criminally responsible. By his raising the issue of honest and reasonable but mistaken belief he is raising a special form of the plea of not guilty that he made at the beginning of the trial and just as it's put to the prosecution to show that a general plea of not guilty should not be accepted by you it's also for the prosecution to prove to you beyond reasonable doubt that he wasn't acting under an honest and

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reasonable but mistaken belief. Just for that purpose, what grounds does he rely upon to say that he has an honest and reasonable but mistaken belief that she was consenting? He goes back to conversations, what happened at the nightclub and the horseplay at the nightclub that he said occurred. He goes back to what he says occurred in the taxi. He goes back to the fact that he says that she took the mattress in to the room. He goes back to the fact that when she got home she let the boys into the house, that she got changed and whatever. So those matters in his mind when he goes into the room - and he says she lays [sic lies] on the mattress. When he goes into the room in those circumstances if he puts his penis in her mouth and he says she sucks it then he thinks she is consenting to what's going on. She is not simply lying there passively. He says that she is actively sucking his penis. She denies that, but he says that that was happening. It's up to the prosecution to prove to you beyond reasonable doubt that he wasn't acting under that honest and reasonable but mistaken belief that she was consenting."

79 The defence of the appellant in respect of count 1 was that no detention occurred because the complainant was present in the room voluntarily. Unlawful detention involves confinement of a person against their will, and requires consideration of the subjective state of mind of the person confined. Section 36 of the Code establishes that the defence of mistake of fact under s 24 is available in cases of unlawful detention. The appellant's defence in relation to count 1 implied that the appellant lacked the intention to detain the complainant against her will. This required the consideration of the subjective mental state of the appellant, including whether the appellant had an honest and reasonable but mistaken belief that the complainant was in the room voluntarily.

80 In my consideration of ground 1, I have concluded that a reasonable jury would not find that the appellant had an honest and reasonable but mistaken belief that the complainant was consenting in relation to count 2, while finding such a belief negatived in relation to count 1.

81 In my opinion, the learned trial Judge, in not directing the jury that they needed to consider whether the appellant had an honest and reasonable but mistaken belief that the complainant was in the room voluntarily, while discussing the defence of honest and reasonable but mistaken belief in relation to count 2, erred in that his direction may have led the jury to believe that it was not open to them to consider whether the

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appellant had an honest and reasonable but mistaken belief that the complainant consented to being in the room with him and KD. For these reasons I would uphold the additional ground 6.

82 It follows that I would allow the appeal and quash the conviction on count 1. In view of the acquittal of the appellant in respect of counts 2, 3 and 4 and the conclusion that these verdicts were inconsistent with the verdict of conviction on count 1, it would not be appropriate to order a retrial on count 1. On the contrary, the appropriate disposition would be for this Court to direct that a verdict of acquittal be entered in respect of count 1.

83 It also follows from the verdicts of acquittal on counts 2, 3 and 4 and the order of this Court quashing the conviction on count 1 that there was no evidence at the trial capable of reasonably supporting the conviction of the appellant on counts 5, 6 and 7 involving the appellant as an accessary. The consequence is that the appellant is entitled to a directed verdict of acquittal. If the disposition was otherwise, there is at least a theoretical possibility that there might be a retrial of one or more of the alleged offences in circumstances where we have concluded that the evidence was incapable of supporting the convictions. For these reasons there should be no order for a new trial.

84 EM HEENAN J: I have had the advantage of reading, in draft, the reasons for decision of the Chief Justice. I agree, with respect, with those reasons and with the conclusions that this appeal should be allowed and the conviction of the appellant on counts 1, 5 and 6 of the indictment should be quashed and that in lieu judgments of acquittal should be entered in respect of each of those counts.

85 SIMMONDS J: I have had the advantage of reading the draft judgment of the Chief Justice. I agree with it and with his conclusion that the appeal should be allowed, and the appellant's convictions on counts 1, 5 and 6 should be quashed and directed verdicts of acquittal entered on them.