BRK v The Queen
[2001] WASCA 161
•25 MAY 2001
"BRK" & ORS -v- THE QUEEN [2001] WASCA 161
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 161 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:172/2000 | 20/11/2000 | |
| Coram: | MURRAY J OWEN J PARKER J | 25/05/01 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Applications for leave to appeal dismissed | ||
| PDF Version |
| Parties: | "BRK" "CKH" "MJM" "WRH" "SEM" THE QUEEN |
Catchwords: | Criminal law and procedure Charges of unlawful detention, sexual assault and indecent assault No element of intention to penetrate or apply force without complainant's consent Direction required as to mistake Direction required as to delay in making complaint Direction as to accuseds' prior good character Direction as to complainant's failure to offer physical resistance The direction as to the charge of unlawful detention Inconsistency of verdicts |
Legislation: | Criminal Code (WA) s 23, s 24, s 319 Evidence Act 1906 (WA) s 36BD |
Case References: | Brennan v The King (1936) 55 CLR 253 Cook v The Queen (2000) 22 WAR 67 Crofts v The Queen (1996) 186 CLR 427 Daniels v The Queen (1989) 1 WAR 435 DPP v Morgan [1976] AC 182 G J Coles & Co Ltd v Goldsworthy [1985] WAR 185 Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236 at 243 He Kaw Teh v The Queen (1985) 157 CLR 523 Holman v R [1970] WAR 2 Jones v The Queen (1997) 191 CLR 439 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Kailis v The Queen (1999) 21 WAR 100 Kilby v The Queen (1973) 129 CLR 460 Longman v The Queen (1989) 168 CLR 79 Masciantonio v The Queen (1995) 183 CLR 58 Melbourne v The Queen (1999) 198 CLR 1 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 Osland v The Queen (1998) 197 CLR 316 Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 2 All ER 635 R v Brown (1975) 10 SASR 139 R v Moloney [1985] AC 905 R v Saragozza [1984] VR 187 R v Trimboli (1979) 21 SASR 577 Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45 Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 Sherras v De Rutzen [1895] 1 Q.B. 918 Stingel v The Queen (1990) 171 CLR 312 Tracey v The Queen (1999) 20 WAR 555 Ward v The Queen [1972] WAR 36 Wedd v The Queen [2000] WASCA 273 Aik v The Queen, unreported; CCA SCt of WA; Library No 950058; 21 February 1995 Alford v Magee 85 CLR 437 Beckwith v The Queen (1976) 135 CLR 569 Charlie v The Queen (1999) 162 ALR 463 Cleland v The Queen (1982) 151 CLR 1 Egerton v Taylor (1996) 90 A Crim R 186 Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129 Glennon v The Queen (1994) 179 CLR 1 Jiminez v The Queen (1992) 173 CLR 572 Kahatapitiye v The Queen, unreported; CCA SCt of WA; Library No 980232; 1 May 1998 Kidd v Reeves [1972] VR 563 Lackner v The Queen [1999] WASCA 145 Lombardo v The Queen [1999] WASCA 127 M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 McKenzie v GJ Coles & Co Ltd (1983) 32 A Crim R 377 McLuckie v Williams (1995) 82 A Crim R 118 McPherson v Cairn [1977] WAR 28 Ottobrino v Espinoza (1995) 14 WAR 373 Proudman v Dayman (1941) 67 CLR 536 R v Barlow (1997) 188 CLR 1 R v Barradeen; SCt of WA; Ind No 32 of 1992; 14 October 1992 R v Bonora (1994) 35 NSWLR 74 R v Celebicanin & Nyiri (1991) 53 A Crim R 374 R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 R v Davies & Others (1985) 3 NSWLR 276 R v Dell' Albani (1990) 49 A Crim R 294 R v Fryer and Others; SCt Ind No 125 of 1992; 16 February 1993 R v Hopper, Butterworths Unreported Judgments BC9303403; Qld C of A No 337 of 1993 R v Ireland (1970) 126 CLR 321 R v Kimber [1983] 3 All ER 316 R v Kotzmann [1999] 2 VR 123 R v Lars (1994) 73 A Crim R 91 R v M (1998) 104 A Crim R 154 R v Miletic [1997] 1 VR 593 R v Millar (1998) 103 A Crim R 526 R v Mogg (2000) 112 A Crim R 417 R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 R v Omarjee (1995) 79 A crim R 355 R v Veverka [1978] 1 NSWLR 478 R v Whelan [1973] VR 268 R v Wilkes & Briant [1965] VR 475 Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 Sreckovic v The Queen [1973] WAR 85 Van Den Hoek v The Queen (1986) 161 CLR 158 Viro v The Queen (1978) 141 CLR 88 Wroblewski v Starling [1987] WAR 233 Zecevic v DPP (1987) 162 CLR 645 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "BRK" & ORS -v- THE QUEEN [2001] WASCA 161 CORAM : MURRAY J
- OWEN J
PARKER J
- CCA 178 of 2000
CCA 179 of 2000
CCA 180 of 2000
CCA 181 of 2000
- "CKH"
"MJM"
"WRH"
"SEM"
Applicants
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Charges of unlawful detention, sexual assault and indecent assault - No element of intention to penetrate or apply force without complainant's consent - Direction required as to mistake - Direction required as to delay in making complaint - Direction as to accuseds' prior good character -
(Page 2)
Direction as to complainant's failure to offer physical resistance - The direction as to the charge of unlawful detention - Inconsistency of verdicts
Legislation:
Criminal Code (WA) s 23, s 24, s 319
Evidence Act 1906 (WA) s 36BD
Result:
Applications for leave to appeal dismissed
Representation:
Counsel:
Applicants : Mr O P Holdenson QC & Mr L M Levy
Fifth-named Applicant : Mr M J Bowden
Respondent : Mr K P Bates
Solicitors:
Applicants : Laurie Levy
Fifth-named Applicant : Cannon Bowden & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Brennan v The King (1936) 55 CLR 253
Cook v The Queen (2000) 22 WAR 67
Crofts v The Queen (1996) 186 CLR 427
Daniels v The Queen (1989) 1 WAR 435
DPP v Morgan [1976] AC 182
G J Coles & Co Ltd v Goldsworthy [1985] WAR 185
Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236 at 243
He Kaw Teh v The Queen (1985) 157 CLR 523
Holman v R [1970] WAR 2
Jones v The Queen (1997) 191 CLR 439
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kailis v The Queen (1999) 21 WAR 100
Kilby v The Queen (1973) 129 CLR 460
(Page 3)
Longman v The Queen (1989) 168 CLR 79
Masciantonio v The Queen (1995) 183 CLR 58
Melbourne v The Queen (1999) 198 CLR 1
Mellifont v Attorney-General (Qld) (1991) 173 CLR 289
Osland v The Queen (1998) 197 CLR 316
Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 2 All ER 635
R v Brown (1975) 10 SASR 139
R v Moloney [1985] AC 905
R v Saragozza [1984] VR 187
R v Trimboli (1979) 21 SASR 577
Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Sherras v De Rutzen [1895] 1 Q.B. 918
Stingel v The Queen (1990) 171 CLR 312
Tracey v The Queen (1999) 20 WAR 555
Ward v The Queen [1972] WAR 36
Wedd v The Queen [2000] WASCA 273
Case(s) also cited:
Aik v The Queen, unreported; CCA SCt of WA; Library No 950058; 21 February 1995
Alford v Magee 85 CLR 437
Beckwith v The Queen (1976) 135 CLR 569
Charlie v The Queen (1999) 162 ALR 463
Cleland v The Queen (1982) 151 CLR 1
Egerton v Taylor (1996) 90 A Crim R 186
Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
Glennon v The Queen (1994) 179 CLR 1
Jiminez v The Queen (1992) 173 CLR 572
Kahatapitiye v The Queen, unreported; CCA SCt of WA; Library No 980232; 1 May 1998
Kidd v Reeves [1972] VR 563
Lackner v The Queen [1999] WASCA 145
Lombardo v The Queen [1999] WASCA 127
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
McKenzie v GJ Coles & Co Ltd (1983) 32 A Crim R 377
McLuckie v Williams (1995) 82 A Crim R 118
McPherson v Cairn [1977] WAR 28
Ottobrino v Espinoza (1995) 14 WAR 373
(Page 4)
Proudman v Dayman (1941) 67 CLR 536
R v Barlow (1997) 188 CLR 1
R v Barradeen; SCt of WA; Ind No 32 of 1992; 14 October 1992
R v Bonora (1994) 35 NSWLR 74
R v Celebicanin & Nyiri (1991) 53 A Crim R 374
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Davies & Others (1985) 3 NSWLR 276
R v Dell' Albani (1990) 49 A Crim R 294
R v Fryer and Others; SCt Ind No 125 of 1992; 16 February 1993
R v Hopper, Butterworths Unreported Judgments BC9303403; Qld C of A No 337 of 1993
R v Ireland (1970) 126 CLR 321
R v Kimber [1983] 3 All ER 316
R v Kotzmann [1999] 2 VR 123
R v Lars (1994) 73 A Crim R 91
R v M (1998) 104 A Crim R 154
R v Miletic [1997] 1 VR 593
R v Millar (1998) 103 A Crim R 526
R v Mogg (2000) 112 A Crim R 417
R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315
R v Omarjee (1995) 79 A crim R 355
R v Veverka [1978] 1 NSWLR 478
R v Whelan [1973] VR 268
R v Wilkes & Briant [1965] VR 475
Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134
Sreckovic v The Queen [1973] WAR 85
Van Den Hoek v The Queen (1986) 161 CLR 158
Viro v The Queen (1978) 141 CLR 88
Wroblewski v Starling [1987] WAR 233
Zecevic v DPP (1987) 162 CLR 645
(Page 5)
1 MURRAY J: These five applications for leave to appeal against conviction were heard together. The appeal papers were substantially before the Court in electronic form. The applications were argued on grounds amended by leave granted at the hearing. Some of the grounds originally filed were not argued. They were abandoned at the hearing.
The Indictment and the Crown case
2 The applicants were five out of six persons jointly indicted with an offence of unlawful detention of a female complainant, contrary to the Criminal Code (WA), s 333, at Ascot on 22 May 1999. Joined in the indictment were a further 25 offences charged against all of the six accused persons. Generally speaking, they were charges of aggravated sexual assault, the circumstance of aggravation in each case being the allegation that the accused persons were in company with each other. These charges involved various forms of sexual penetration by individual accused persons - penile penetration of the complainant's vagina and of her mouth. In addition, there was a charge of indecent assault allegedly committed by all of the accused persons when one of them placed his penis into the complainant's hand. Finally, count 10 on the indictment was a charge of attempted anal penetration of the complainant charged against all of the accused persons in the circumstance of aggravation that they were alleged to be in company with each other.
3 In respect of each charge the Crown case was that the acts constituting the various charges occurred over a period of time on the same occasion, during which period the complainant was unlawfully detained at the quarters of one of the accused persons at Ascot. The complainant was a strapper and stablehand and the accused persons were apprentice jockeys. All of the accused persons and the complainant were known to each other.
4 The Crown case was that the complainant came to the apprentices' quarters by prior arrangement. Before she arrived it was alleged that all six of the accused persons formed a plan to detain her and commit sexual offences upon her, each accused person having the opportunity to directly commit sexual acts upon the complainant while the others were to aid those activities by their presence and by providing such assistance and encouragement as might be required from time to time. Indeed, in respect of some of the accused persons, it was alleged that their assistance in the commission of particular offences was of a direct kind by holding or otherwise physically restraining the complainant. I need not recount the details of the allegations.
(Page 6)
5 It was alleged that the offences were committed on a bed and in or in the vicinity of a shower. Some accused persons were alleged to have played a more substantial role in the commission of the offences than others. For example, in only one case was it alleged that the applicant, SEM, committed any sexual assault as a principal offender, on that occasion by penetrating the complainant's vagina with his penis. That was also the case with respect to the sixth accused person, who is not an applicant before this Court, but who was alleged on one occasion to have introduced his penis into the complainant's mouth.
6 The first count on the indictment charging the offence of unlawful detention, however, was clearly put on the basis that each of the accused persons was charged as a principal offender under the Code, s 7(a). It was alleged that the complainant was unlawfully detained for the purpose of the commission of sexual offences upon her from the time when, having entered the living quarters, the door was locked behind her until she was finally again given her clothing and allowed to leave. During that period it was alleged that "each of the six accused have all played a part in detaining the complainant against her will at the apprentices' quarters."
7 On the other hand, it was contended by the Crown that in relation to the specific sexual assaults and the attempted sexual assault charged there was in each case one principal offender who committed the offence with the aid or encouragement of the others. They were not mere bystanders, but in a variety of ways provided their assistance to the process of offending. In the initial stages, three of them were alleged to have hidden so that the complainant would not take fright at the number of male persons present. There were, as I have mentioned, cases where particular accused persons were alleged by their physical acts to have directly assisted the commission of particular offences and otherwise the accused persons not participating as a principal offender, were alleged to provide their aid because they were not mere bystanders, but were present as part of what was in effect a criminal conspiracy, lending their aid by the encouragement provided by their presence, an active encouragement without opposition or dissent, an encouragement intentionally given.
8 Apart from the evidence of the complainant, the Crown case comprised her boyfriend, to whom she made a complaint shortly after the commission of the offences, medical evidence of her examination and evidence of investigating police officers who interviewed on video three of the applicants, MJM, his brother SEM and WRH. Each in general terms told the police that the sexual activities which occurred at the relevant time were with the complainant's consent. It should be said that
(Page 7)
- there was little in the evidence which was capable of substantially corroborating the account given by the complainant and it was accepted therefore that there could be no conviction of any offence charged except to the extent that the jury accepted the complainant as a witness of truth, giving an accurate account of what occurred without her consent.
The Verdicts
9 The trial before Muller DCJ and a jury commenced on 26 June 2000. The Crown closed its case on 30 June and submissions that there was no case to answer in respect of nominated counts on the indictment were made and argued on behalf of each of the accused persons. On 3 July, Muller DCJ ruled on those submissions and directed various verdicts of acquittal. The defence cases were then presented and ultimately the jury returned their verdicts. In the result the jury acquitted each of the accused persons of the charge which was count 5 in the indictment, an aggravated sexual assault allegedly by the introduction of the penis of the applicant CKH into the complainant's mouth.
10 In addition, the applicant WRH was acquitted of complicity in the last count on the indictment, count 26, which was the one offence of aggravated sexual assault alleged against the accused person who has not made an application for leave to appeal against conviction. In the final result, having regard to the directed verdicts of not guilty and the other verdicts of the jury, in relation to this count, no accused person was convicted of this offence. For completeness I note that with respect to count 15, the one offence of alleged sexual assault by the applicant, SEM, there had been directed verdicts of acquittal of each of the other accused persons in respect of that offence and SEM was acquitted of it by the jury, so that no person was convicted of the offence alleged in count 15.
11 In the final analysis, so far as the applicants are concerned, all of them were convicted of the offence of unlawful detention which was count 1 on the indictment. The applicant, SEM, was, however, acquitted by the jury of each of the other offences with which he was charged. In the result, being a juvenile, he was not given a custodial sentence, but for the unlawful detention was placed on an intensive youth supervision order for a period of 12 months.
12 So far as the other applicants are concerned, BRK was convicted of one offence of unlawful detention, 11 offences of aggravated sexual assault, one offence of attempted aggravated sexual assault and one offence of aggravated indecent assault. He was sentenced in the
(Page 8)
- aggregate to a period of 3 years detention with a minimum period of 14 months being fixed before he could become eligible for supervised release. The applicant CKH was convicted of one offence of unlawful detention, 16 offences of aggravated sexual assault, one offence of attempted aggravated sexual assault, and one offence of aggravated indecent assault. He was sentenced to an aggregate of 4 years detention with a minimum period of 20 months being set before he might be released under supervision. The same course was taken with the applicant, MJM, who was convicted of one offence of unlawful detention, 18 offences of aggravated sexual assault, the offence of attempted aggravated sexual assault, and the offence of aggravated indecent assault.
13 Finally, the applicant WRH was convicted of the offence of unlawful detention, 10 offences of aggravated sexual assault and the offence of aggravated indecent assault. Being by then an adult, WRH was sentenced to 3-1/2 years imprisonment in aggregate and ordered to be eligible for parole. In the ordinary course he would become so eligible after serving 14 months of the sentences imposed upon him. It can be seen therefore, that CKH and MJM, who were convicted of the greatest number of offences, were dealt with as the most serious of the offenders before the Court, while BRK and WRH, who were convicted of rather fewer offences, were treated rather more leniently. The sentences of detention and imprisonment were in each case ordered to commence upon 14 July 2000, the dates upon which by the verdicts of the jury the applicants were convicted.
The mental element in the sexual offences
14 The cases on appeal of the applicants BRK, CKH, MJM and WRH proceeded on the same grounds. In relation to the substantive sexual offences of which the applicants were convicted, reliance was principally placed upon an additional ground of appeal added by amendment at the hearing. This raised two matters of a separate but related kind. The first complaint made by the ground, which generally challenges the correctness of the directions of the trial Judge concerning the mental element of the sexual offences, complains that his Honour erred by failing to direct the jury that an element of each of the offences, to be proved beyond reasonable doubt, was that each of the applicants "knew or was aware that the complainant was not consenting."
15 Certainly no such direction was given by the trial Judge. His Honour directed the jury in what in this State may be regarded as conventional terms. As to the offence of sexual penetration without consent defined by
(Page 9)
- s 326 of the Code, his Honour told the jury that the elements of that offence which had to be established by the Crown beyond reasonable doubt were an act of sexual penetration as defined by the Code, s 319 and that at the time such act was found, if that be the case, the complainant did not consent to what was done to her. His Honour told the jury that to penetrate a woman's vagina with a man's penis was an act of sexual penetration and for a man to introduce his penis into the mouth of another person was an act of sexual penetration as defined by the law. His Honour elaborated upon the concept of penetration in terms consistent with the provisions of the Code.
16 He did not expressly tell the jury that it was necessary for them to be satisfied beyond reasonable doubt that any act of penetration which they found did occur was to be one which the accused performing the act knew was occurring or was one which he was performing deliberately or intentionally in the sense that it was a willed act, one which the accused meant to perform. However, as the case was fought at the trial (always an important factor in determining the terms in which the trial Judge's address to the jury is to be framed), no such issue arose in this case.
17 BRK and CKH gave evidence in their own defence. They had not given videoed out-of-court statements. Such statements had been made by the applicants SEM and MJM and by WRH. None of those persons gave evidence in their own defence. In no case, by evidence or in the content of any out-of-court statement made by an applicant, was there any suggestion that the acts of the individual concerned were other than deliberately performed, willed acts. The issue raised in the case of each of the applicants was whether or not the complainant was a consenting party or, if she was not, whether or not the particular accused person was established beyond reasonable doubt not to have had an honest and reasonable, but mistaken belief that the complainant was consenting, within the terms of the Code, s 24. Therefore, for his Honour not to have expressly told the jury that any acts of sexual penetration which they found to have occurred must be willed acts within the meaning of the Code, s 23 could, as was conceded by learned senior counsel for the applicants, provide no basis upon which the convictions should be quashed.
18 I put to one side for the moment the elements of the offence charged in count 10 of the indictment, the attempted anal penetration of the complainant without her consent, but the factual issues raised at trial in respect of that count were the same as with respect to the charges of completed acts of sexual penetration.
(Page 10)
19 As to the remaining offence charged in the indictment, that of indecent assault, again Muller DCJ directed the jury in what may be regarded as conventional terms, and again the issues of fact raised at trial concerned the questions of absence of consent and belief in consent to which I have referred above. The offence of aggravated indecent assault is defined by s 324. By referring to the concept of an assault s 324 draws upon the definition of that term contained in the Code, s 222 and in the context of this case what was required to be established was some application of force to any degree without the consent of the complainant. If an assault was found, in the context of this case his Honour correctly told the jury that it would be unlawful. He directed the jury correctly on the element of indecency. His Honour concluded his remarks on this offence by saying:
"In this case, of course, it is alleged that the complainant, without her consent, was forced to put her hand on the penis of the accused named in count 6 and required to masturbate him. Although it is a comment by me which is not binding upon you, I would have thought if those facts are proved you would be justified in reaching a conclusion that an unlawful and indecent assault had taken place. The critical question, of course, is the issue of consent or, alternatively, honest and reasonable but mistaken belief in such a consent."
20 Again, it can be seen that his Honour did not expressly tell the jury that the identified act of the principal accused in respect of this offence must be one deliberately or wilfully performed so as to constitute the relevant application of force to the complainant. But again, there was no suggestion to the contrary that the relevant act was in any way accidental or unwilled, and the true issue was that identified by his Honour as to which, again, it is certainly correct that his Honour did not give the direction, the absence of which is the complaint raised by this particular ground of appeal.
21 Learned senior counsel developed his argument in respect of this ground by relying strongly upon the common law and the requirement to establish mens rea, that the alleged criminal conduct should be intentionally or knowingly performed as an element of any offence not defined in terms which clearly import strict or absolute liability. Reliance was placed upon the exposition of the law by the High Court in He Kaw Teh v Queen (1984) 157 CLR 523. Counsel argued that such an element of the offence is, perhaps sub silentio, required in respect of the offences defined in the Criminal Code at issue in this case, as a matter of the
(Page 11)
- ordinary construction of the Code and consistently with the law in other jurisdictions, referring to the decision of the House of Lords in DPP v Morgan [1976] AC 182 with respect to the common law offence of rape.
22 Whatever may be its validity in the context of a jurisdiction where the law as to criminal responsibility is the common law, the argument may not, in my opinion, be sustained in a jurisdiction such as this where the criminal law is that defined in the Code, which contains the provisions governing criminal responsibility in respect of offences against the law of WA (as s 36 of the Code makes clear). The relevant provisions are, of course, to be found in Chapter V of the Code, a document which is not to be interpreted on the basis that it is engrafted upon the common law which remains as a substratum of law underpinning the provisions of the Code, so to speak, to the extent that those provisions do not expressly alter the previously existing common law. On the contrary, being a code, the Criminal Code is to be taken to provide the whole of the law in respect of the criminal responsibility of persons charged with criminal offences: Brennan v The King (1936) 55 CLR 253, 263; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289, 309; Ward v The Queen [1972] WAR 36, 41-42.
23 That being so, it is to be noted that neither in the provisions defining the relevant offences, which I have discussed above, nor in any of the provisions of Chapter V, is there any provision which would make it an element of the offences of sexual assault or indecent assault, to use shorthand terms, that not only should the offender intentionally, wilfully or deliberately penetrate or apply force to the complainant, but that he should do so, as the ground of appeal has it, knowing that she was not consenting thereto. In my opinion, the relevant Code equivalent to the common law doctrine of mens rea is to be found in the provisions of s 23 and the requirement that, subject to the express provisions of the Code relating to negligent acts and omissions (to be found in Chapter XXVII), "a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will". The consequence of that view is not at all that the law would permit such offences to be committed as a result of mere carelessness, as senior counsel submitted, although, of course, as has been seen, s 23 does preserve the capacity in certain circumstances for criminal responsibility to flow from what may be described as grossly negligent or reckless behaviour.
24 Of course, s 23 imports a general state of mind of conscious and deliberate action in relation to the acts or omissions of a person which may constitute the offence charged. The additional element of the
(Page 12)
- absence of the consent of the alleged victim in the offences under discussion has nothing to do with the state of mind of the accused, but is concerned with that of the complainant, and is to be established as a fact beyond reasonable doubt in its own terms. So far as the accused is concerned, his consciousness or state of mind in relation to the existence of that factual element, the absence of the complainant's consent, is, as was done in this case, to be tested against the application to the case of s 24 of the Code with the effect that the accused's criminal responsibility is to be co-extensive with what would have been the position had the real state of things been as he honestly and reasonably but mistakenly believed them to be. Again it is clear that that is a provision to be applied in the context that the onus remains upon the Crown to negate its application beyond reasonable doubt, once there is evidence capable of raising it.
25 So it was that in this case the jury were correctly directed by his Honour, for example, in relation to the offence of sexual penetration without consent that:
"If an accused honestly and reasonably but mistakenly believed that the complainant was consenting to an act of sexual penetration, he would not be criminally responsible for his act in penetrating her. There is no onus on an accused person to prove he had an honest and reasonable but mistaken belief that the complainant was a consenting party.
As I have told you, there is never any onus on an accused person to prove anything in a criminal trial. All an accused need do is to lay the foundation for such a belief which, of course, has been done in this case. The burden lies on the Crown to satisfy you beyond reasonable doubt that the accused whose case you are considering did not honestly and reasonably hold the belief in question.
The Crown may discharge this onus, ladies and gentlemen, by proving either that the accused did not honestly believe the complainant was consenting or that his belief was, in all the circumstances, unreasonable. The honesty of the accused's belief is, of course, the subject at issue. The honesty of an accused's belief requires an examination of that particular person's state of mind at the time of the act in question.
The reasonableness of the accused's belief is an objective factor to be judged by the standard of a reasonable person of the same
(Page 13)
- age, background and level of intellectual functioning as the accused, and familiar with all the circumstances that were known to the accused at the relevant time.
The question you have to ask yourselves is whether the Crown proves beyond reasonable doubt that an ordinary person, in the position of the accused whose case you are considering, would not reasonably have believed that the complainant was a consenting party. And that is the question that you will have to address. I have framed the question in that way because by framing it in that way it places the onus on the Crown where, of course, it must lie."
- The direction in respect of the other offences charged was, upon this issue, in the same terms.
26 In my opinion that direction and the way in which I have stated the law is in accord with the provisions of the Code as they have been understood for many years, at least since the decision of this Court in Re Attorney-General's Reference No 1 of 1977 [1979] WAR 45, per Burt CJ, with whom Jones and Smith JJ agreed, at 51. That case concerned a charge of rape under the Code, s 325 as the provision then was. For present purposes the offence was defined as having carnal knowledge of a woman or girl, not the wife of the accused, without her consent. In my opinion the fact that the offence was defined in that way, when the provision is compared with a section such as s 326 relative to this case, provides no basis upon which the statement of the law in that case may be distinguished for present purposes. In that case Burt CJ expressed the view that the elements of the offence were those directly contained in the section defining it. His Honour continued:
"Whether upon the proof of the elements of the offence as they appear in that section the man is criminally responsible will then depend not upon anything to be found by way of implication within the section but upon the application to him of one or other of the sections appearing in Ch V of the Code and more particularly for present purposes upon the application to him of s 24 … ."
- In my opinion, that was precisely the situation which confronted the trial Judge in this case.
27 As I have said, we were invited to distinguish this authority or, if as I would hold to be the case, we concluded that was not appropriate, we
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- were invited to hold the case to have been wrongly decided. For myself I can see no reason to take that view. Indeed it is my respectful opinion that the view expressed is correct as a matter of law. In any event, it would not be appropriate for this Court as presently constituted to do other than accept such a long-standing well accepted authority as being correctly decided: cf Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, as to the circumstances in which this Court would depart from one of its previous decisions.
28 It follows from the above that with respect to the offence of attempted sexual assault, count 10 on the indictment, as with the former offence of attempted rape, the position would be different. That is because by s 4 of the Code an attempt is committed "when a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence…". It is therefore necessary to constitute an attempt that the accused intends, in the present context, to sexually penetrate the complainant without her consent. He must, in other words, be proved to have intended to penetrate her without her consent or whether or not she would consent.
29 That such a distinction exists as a matter of law in this jurisdiction was recognised by Burt CJ in Re Attorney-General's Reference No 1 of 1977 at 51 where his Honour remarked, as is self-evidently the case, that to so conclude depends upon the proper construction of s 4 of the Code, defining the offence of an attempt to commit an offence, rather than upon the application to the case of the provisions of s 24. I would only add that in my opinion, to so hold is consistent with the sound application of principle and presents no anomaly, because in the case of an attempt the law is concerned to define the circumstances in which criminal responsibility will be imposed upon a person who seeks to commit, but does not in fact succeed in committing, a completed offence.
The law as to mistake
30 That leads on directly to the second matter of complaint to which reference is made in the additional ground of appeal. It concerns the direction given in relation to all those counts in the indictment where the Crown was required to establish the non-consent of the complainant. The contention is that Muller DCJ erred in his direction in respect of s 24 of the Code, "in failing to direct the jury that the 'reasonable belief' was related to the belief of the accused being based on reasonable grounds."
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- In par [25] above I have set out the principal direction on the topic given by his Honour. Other references to the issue in his Honour's charge to the jury are in consistent terms. The complaint which is made in this ground is concerned with the fourth and fifth paragraphs of the passage from his Honour's direction which I have quoted.
31 As the ground was developed in argument, it is, I think, encapsulated in the proposition that the trial Judge was obliged to make it clear to the jury that the Crown was required to prove beyond reasonable doubt that the accused whose case they were considering did not himself, in the circumstances as they were known to him, reasonably believe or have reasonable grounds for believing that the complainant was consenting to the particular form of sexual penetration or the application of force in question.
32 Section 24 of the Code 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."
33 As Burt CJ remarked in G J Coles & Co Ltd v Goldsworthy [1985] WAR 185 at 187, the requirements of the section appear to be clear. As his Honour put it:
"The belief 'under' which the act is done must be honest, which is to say no more than it be held in fact; it must be reasonable, which is to say that it must be based on his appreciation of primary objective fact which is in reason capable of sustaining the belief; …."
34 It is clear, in my opinion, that the Court is concerned under the section with the accused person's positive belief, genuinely or actually held. It is that belief which must be reasonable; ie, in all the circumstances it must have been reasonable for the accused person to hold the belief which, in this case, would render his conduct innocent. In my opinion that is what his Honour told the jury in the portion of his charge which I have quoted and elsewhere where his Honour referred to the question of the application of s 24 in his discussion of the case in respect of particular accused persons.
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35 In the passage quoted, after his Honour told the jury that it was for the Crown to satisfy them beyond reasonable doubt "that the accused whose case you are considering did not honestly and reasonably hold the belief in question", he went on to direct the jury that one way the Crown might discharge the onus upon it was to show that the accused did not in fact honestly hold the belief that the complainant was consenting. Alternatively, his Honour said, the onus might be discharged by showing in relation to a particular accused person "that his belief was, in all the circumstances, unreasonable."
36 In the passage complained of his Honour was giving directions, perhaps unnecessarily, as to the way in which the jury should make a judgment about the reasonableness of the accused's belief. As to that, for myself, I can see no error in the direction that the question of reasonableness was "to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as the accused, and familiar with all the circumstances that were known to the accused at the relevant time." Because it is the actual belief of the accused with which the section is concerned, in judging reasonableness it will always be necessary to advert to the circumstances as they existed at the time in so far as they were known to the accused. The question is whether it was reasonable for him to hold the belief and that is the way in which I think the trial Judge left the question to the jury.
37 There is little authority upon the extent to which the characteristics of the accused should be attributed to the reasonable person in the way expressly included in his Honour's direction. It is not the thrust of the ground of appeal that his Honour erred in this regard, but the issue was developed in argument and the Court was referred to the case of Daniels v The Queen (1989) 1 WAR 435 per Kennedy J, with whom Malcolm CJ and Seaman J agreed, at 445. In that case it seems that the complaint was that the trial Judge erred in a case where the accused, relying on s 24 in answer to a charge of aggravated sexual assault, was intoxicated. The trial Judge had directed the jury that in judging the reasonableness of the accused's belief, the jury should pay no regard to the accused's intoxication because, as his Honour put it, "You must always remember that the reasonable man is sober."
38 Kennedy J expressed the view that the direction was clearly correct, relying by analogy upon authorities to that effect in the context of the law of provocation where the issue is to be tested against the restraint to be expected of "an ordinary person". In that context the gravity of the provocation, it is accepted, is to be measured against the effect it might
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- have upon an ordinary person possessing the characteristics of the accused relevant to that issue. However, in that context, it is also clear that in making a judgment about the power of self control to be attributed to the hypothetical ordinary person, the personal characteristics or attributes of the accused are not to be considered: see Stingel v The Queen (1990) 171 CLR 312 and Masciantonio v The Queen (1995) 183 CLR 58.
39 I am of the view that it is unnecessary for a trial Judge, in directing a jury in respect of s 24 and its application to a particular accused person in a case where there is evidence capable of raising that question, to do more than tell the jury that the Crown must negate the existence of an honest and reasonable mistake and they must disprove it beyond reasonable doubt. This they may do if they establish to the required standard that the accused did not in fact hold the belief professed. Alternatively, if that is not established and the jury are to consider the question upon the basis that the accused may have honestly held that belief, the Crown must establish beyond reasonable doubt that the accused person could not in all the circumstances as they were presented to him or her, have reasonably held that belief, the jury using their own judgment as to the belief which could reasonably be held in those circumstances.
40 It was not suggested in this case for any of the applicants that they had any relevant characteristic or trait which adversely affected their perception of events, but that of course would be an aspect of the circumstances against the background of which the reasonableness of the belief was to be judged. Nor was it suggested that any applicant was so immature or lacking in intellectual capacity as not to have understood the true facts or circumstances which would bear upon the reasonableness of the belief. But again, that would be a matter which would relate to the jury's conclusion as to what the circumstances were against the background of which the reasonableness of the belief was to be judged. It is sufficient, however, so far as this ground is concerned, that I would conclude that there was no relevant failure of direction in that the trial Judge did make it clear to the jury that it was the reasonableness of the belief of the accused which was to be judged.
The direction about delay in complaint
41 The ground of appeal next argued for all the applicants was ground 4, which refers to the question of recent complaint and contends that Muller DCJ erred by not directing the jury that:
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- "…whilst a delay in complaining was not in itself evidence that the complaint was untrue, the delay was a matter which the jury could take into account in coming to its findings of fact in relation to the issue."
- In the way the ground is expressed there is, I think, a lack of clarity as to what the nature of the alleged error is said to be, but as argued the proposition is simply that the trial Judge was obliged to tell the jury that delay in making the complaint might cast doubt upon the reliability of the evidence given by the complainant. It might adversely affect the jury's assessment of her credibility and so aid the jury in considering whether or not she was to be believed.
42 As at the date of the alleged offences, the complainant was aged 18 years. She was employed as a stable hand and strapper. She had been so employed by a Mr Ramsay for a little over six months since September 1998. At that time she had been going out with Mr Ramsay's son, Paul, and she continued that relationship while she worked for his father, during which period she lived with the Ramsay family. When she got home after the incidents the subject of the indictment, Mr and Mrs Ramsay were asleep. She showered and went to bed. She said she did not wake Mr and Mrs Ramsay to tell them what had happened. When asked why, she said, "It's not exactly the type of thing you want to tell people that you're not related to or, you know, aren't overly close to in a sense."
43 Her boyfriend Paul was away at the time, she said. He did not return home until the following day. That night when she and Paul went to bed, she told him what had occurred. She "gave him a basic run-down of what happened and who was involved." Later, on 27 May 1999, she consulted a doctor and was referred to the Sexual Assault Referral Centre where she was examined and samples were taken. She followed that with a complaint to the police. A statement was taken from her and the investigation commenced.
44 Paul Ramsay gave evidence that he was a truck driver. He confirmed that he did not see the complainant until the evening of the day upon which he returned home. The complainant was quiet and did not seem herself. He told her as much, whereupon she commenced to cry and made a tearful complaint identifying the alleged offenders and describing in some detail what had occurred. He said the complaint to him was made about half an hour after he returned home. As I understand it, defence counsel relied upon the delay in making the complaint to her boyfriend Paul, rather than earlier to Mr and Mrs Ramsay, as part of their argument
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- that the complainant was not to be believed when she gave in evidence that she had not consented to what occurred. The directions of the trial Judge were therefore given against the background of this debate between counsel in their final addresses to the jury.
45 The Evidence Act1906 (WA), s 36BD provides that where on the trial of a person for a sexual offence it is suggested, inter alia, that the complainant has delayed in making a complaint in respect of the commission of the alleged offence:
"…the judge shall -
(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence."
46 A similar provision, s 61 of the Crimes Act 1958 (Vic), was considered by the High Court recently in Crofts v The Queen (1996) 186 CLR 427. The only substantive difference between the two provisions is that the Vic Crimes Act, s 61, contains a subsection (2) which provides that nothing in the section "prevents a Judge from making any comment on evidence given in the proceeding that it is in the interests of justice to make."
47 In Crofts the trial Judge had done no more than direct the jury in terms of the section and his Honour is noted in the report to have given the jury no further assistance about the manner in which the jury might have regard to the question of delay in their deliberations. The High Court held that the purpose of a section such as s 61 of the Crimes Act was to prevent what had previously been the practice of the courts for a trial Judge to direct a jury in respect of recent complaint in terms which, where there was an absence of such complaint or a delay in complaint, suggested that complainants in such circumstances ought to be regarded as particularly suspect so far as their credit was concerned. But the purpose of the section was clearly not to prevent a trial Judge from making an appropriate comment, having regard to the circumstances of the particular case. As Toohey, Gaudron, Gummow and Kirby JJ put it at 451:
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- "In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the Judge should put such comments before the jury for their consideration. The overriding duty of the trial Judge remains to ensure that the accused secures a fair trial."
- In so holding the Court relied upon Longman v The Queen (1989) 168 CLR 79 at 86.
48 This Court has so held in Kailis v The Queen (1999) 21 WAR 100 per Malcolm CJ, with whom Anderson J agreed, at par [121] - par [127]. There his Honour pointed out that upon the authorities, the direction which should generally be given would be in accord with the High Court's decision in Kilby v The Queen (1973) 129 CLR 460, one referring to the particular circumstances of the case and making it clear that the question of such delay in complaint as the jury found there to be and the reasons for it related to the jury's assessment of the credibility of the complainant, whether they were prepared to rely upon her as a truthful, accurate and reliable witness.
49 The same approach was adopted by Anderson J, with whom Pidgeon and Wallwork JJ agreed, in Cook v The Queen (2000) 22 WAR 67 at par [107] - par [113]. In that case his Honour made the point that what is to be said, if anything, on this topic by the trial Judge, depends upon the way in which the case has been conducted, the arguments which have been addressed to the jury by counsel, and what the overriding requirement of fairness dictates. Failure to give such a direction will not necessarily mean that the trial has miscarried and that any verdicts of conviction must be quashed. Anderson J reminds us at par [108] of his judgment that:
"Mere delay in making disclosure of sexual assault is not, of itself, regarded as a factor which has a special forensic significance which the jury may not appreciate. The problem is not that they will fail to pay regard to it on the question of whether the complainant's story is false or not, but that they make too much of it on that question. The tendency to be suspicious of the truth of an allegation of sexual misconduct, about which nothing was said at the time, and the tendency to make an assumption against the complainant as to the truth of the allegation in those circumstances, would appear to be the very reason why s 36BD was enacted. One might say it is the
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- s 36BD direction which, in truth, provides the balance, in the general run of such cases."
- I respectfully agree. To appreciate that that is the case will provide sound guidance to a trial Judge as to what, if anything, in addition to the general warning, needs to be said to the jury on this topic.
50 Against that background I note that Muller DCJ commenced his directions on this aspect of the evidence by observing that he need not summarise the evidence of what the complainant told her boyfriend while in bed with him on the following night, "because that was canvassed at length by both the Crown and counsel for the accused." His Honour then gave a general direction as to the use to which the jury might put the evidence of complaint in the course of which he gave the warning required by s 36BD. In my respectful opinion there can be no criticism of what his Honour then said.
51 He included in his remarks the observation that the jury might use the evidence of complaint:
"…to judge the consistency of the complainant's conduct at the time of these alleged offences with the evidence given by her in this Court under oath. It may in your view be relevant to her credit as a witness. You may conclude that her conduct at the time in making a complaint to Paul Ramsay was what you would have expected from a person in her position who had recently been sexually assaulted. That is the only use to which you can put that evidence. The complainant, of course, was criticised for not making an earlier complaint. It was suggested to her, for example, that she could have complained that same night to Paul Ramsay's parents who were living in the same place she was."
52 In the course of giving the direction required of him by s 36BD, on the other hand, his Honour reminded the jury briefly of the complainant's evidence in which she gave an explanation for her delay in making a complaint. In my opinion, to direct the jury in that way fully discharged his Honour's obligation of fairness and balance and would have left the jury with a clear appreciation that they were to consider this evidence from the point of view of its impact, if any, upon the complainant's credibility. I would not uphold this ground.
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The direction about prior good character
53 On behalf of three of the accused persons, BRK, CKH and MJM, evidence was led which was accepted to be evidence of prior good character. It is accepted that such evidence may relate both to the credibility of an accused person and to the question of the likelihood that the accused might commit the crimes alleged (in this case that they might unlawfully detain the complainant and apply indecent force to her and sexually penetrate her, or attempt to do so, without her consent). It is also clear that in relation to such evidence the circumstances may be such, but will not necessarily be such in every case, as to require the trial Judge to direct the jury about the use to which evidence of the accused's good character may be put: Melbourne v The Queen (1999) 198 CLR 1.
54 In this case Muller J accepted that he should give a direction about this body of evidence. In that event, as was made clear in Melbourne, no particular form of words is necessary provided the direction makes clear what is the particular relevance of the evidence, and how it may be considered by the jury, the directions being tailored to meet the circumstances of the case. In an appropriate case, the Judge may think it proper to remind the jury, as Kirby J put it in Melbourne at par [120]:
"…that people do commit crimes for the first time and that evidence of previous good character is not a defence in itself and cannot prevail against evidence of guilt which, not withstanding the accused's previous good character, the jury find to be proved."
- Care will need to be taken that in making such remarks the trial Judge does not effectively negate the relevance or value of evidence of good character of which the Judge has previously spoken: Wedd v The Queen [2000] WASCA 273; 12 April 2000 per Murray J, with whom Malcolm CJ and Wallwork J agreed, at par [21] - par [25].
55 In this case the directions given by Muller J were said by his Honour to be modelled upon what was said to be appropriate by a Chief Justice of South Australia. It seems clear that his Honour had in mind the direction recommended by King CJ in R v Trimboli (1979) 21 SASR 577 at 578. No complaint is made about the direction in the general terms in which it was given, but his Honour added the observation to which reference was made in Melbourne and to which I have referred above, that such evidence could not prevail against evidence of guilt which the jury found to be convincing. For myself, I think that in this case that was a useful reminder. But, in support of a ground of appeal which complains that the
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- direction was incorrect as a matter of law, this remark is identified as involving the error that it invited, or at least permitted, the jury to use the evidence of good character "separately as a mere countervailing consideration" rather than to have regard to it directly when considering both the credibility of the accused whose case was under consideration and the question whether that person might have done the acts in the circumstances alleged to constitute the offences charged.
56 To my mind, the observation in the terms made in this case could not have had the effect of denigrating the effect of the evidence of good character or confusing the jury as to the twofold use to which the evidence might be put. It simply made clear the limit to that process which arose when and if the jury came to the point in respect of any particular accused who had advanced evidence of good character that they were otherwise, on the evidence they accepted, satisfied beyond reasonable doubt of guilt. In other words, in that situation evidence of good character was not to be used as a defence.
The direction about a prior sexual assault
57 Ground 2 refers to the complainant's evidence about a prior incident of sexual assault. The complaint is that the jury were not adequately directed as to the use to which they could put the evidence of that prior incident.
58 The evidence first emerged in the complainant's evidence-in-chief. She said that the applicant, CKH, had made the remark on the night of the alleged offences that it was "just like old times". She said, without objection, that she took this to be a reference to an incident which had occurred some two years prior to the occasion the subject of the indictment, when she was aged 16 and at a time when she was working as a stable hand and strapper for a different employer and was living in quarters on his premises. She said that the applicants CKH, MJM, WRH and one other person let themselves into her room and, against her will, all four had sexual intercourse with her, involving penile penetration of her vagina and what she described as oral sex.
59 Her evidence was that she did not consent to what occurred on that occasion, but she did not know what to do about it and in fact had made no report of it or complaint about it to any person. When cross-examined about the incident she denied that it had happened with her consent and that she had spoken to any person about it, although she conceded that she
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- may have discussed it with a girlfriend. She said she did not boast about it.
60 In relation to the defence that what occurred on the night charged in the indictment was with her consent or in circumstances where each accused person honestly and reasonably believed that she was consenting, each of the accused persons relied upon this previous incident, saying that, as participants in it, it had occurred with her consent, or that they had been told by one of the participants in the earlier incident that it had happened with her consent. The point being made, of course, was that by reason that they thought she had previously engaged in consensual group sex of the kind performed on the night in question, and by reason of her failure to physically resist their conduct on that occasion, they honestly and reasonably believed her to be consenting to what occurred.
61 The criticism of the direction of the trial Judge is that whilst he referred to this evidence, he did not do so in terms which specifically related it to their defence. Hence, it is also put in the related ground, ground 3, that the trial Judge erred in failing to direct the jury that while a failure to offer physical resistance could not constitute consent, it was nevertheless a matter which the jury was entitled to take into account in making their findings of fact concerned with the question of the absence of consent and belief in consent.
62 The latter point refers to the Code, s 319(2) which commences by defining the term "consent" and in par (b) goes on to provide that:
"…where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;"
- The trial Judge said that to the jury as part of his directions about non-consent and he continued:
"You will see then that the law recognises there may be situations in which the alleged victim of the sexual assault submits to what is done to her without resisting for fear of something worse happening to her if she does resist. The law recognises there are situations where resistance on the part of the complainant would not necessarily be expected."
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- considering the questions whether the Crown had proved non-consent or negated an honest and reasonable belief in consent. Further, as I understand it, all counsel presented arguments debating the significance of her behaviour on the night in question in terms which would have made it abundantly clear to the jury, as I think did the remarks made by the trial Judge, that the relevance of the behaviour of the complainant on the night in question was to the issues raised by the defence.
64 Specifically as to the prior incident, I have mentioned that it was relied upon by the defence. When Muller J came to this evidence in charging the jury, his Honour explained that the Crown did not rely upon this evidence and could not rely upon this evidence in any way to ask the jury to reason that if the complainant was sexually assaulted on the first occasion any accused person involved in that incident might be convicted on the basis that it was therefore likely that he was guilty of the incident now charged as well. In other words, his Honour made it clear to the jury that they could not use the evidence of the earlier incident to prove guilt upon the basis that the particular accused person had demonstrated a propensity to take advantage of the girl without her consent, or heedless whether or not she was prepared to consent.
65 His Honour then focused upon the defence argument, to which I have referred, about the first incident, saying that:
"The defence puts a completely different interpretation upon the earlier episode. The defence says the two episodes are so extraordinarily alike that they can only be explained by a willingness on the part of the complainant to take part in the sexual activities that occurred. If you find she consented to what happened on the first occasion, or at least led three of the accused honestly and reasonably but mistakenly to believe that she was a willing participant, the defence says it is so unlikely that she withheld consent on the second occasion or did anything to dispel their belief that she was a consenting party that you would have to find that the Crown has failed to negative consent or an honest and reasonable but mistaken belief in such consent."
- His Honour then referred to other related arguments put by the defence. To my mind the issues to which these arguments were said to be relevant would have been abundantly clear to the jury. His Honour made no disparaging remarks about the arguments and merely reminded the jury of them and left the matter to their consideration.
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66 I would not uphold ground 2 and it is therefore unnecessary to devote any further consideration to ground 1 which was in terms that the trial Judge erred in failing to adequately direct the jury as to the defence cases, and to which no separate argument was addressed beyond the observation that it referred to matters in other grounds with which I have dealt.
The charge of unlawful detention
67 As to the applicant SEM, grounds 3 and 4 concern the previous incident and the issue of delay in complaint, and are in the same terms as those argued for the other applicants. I need say no more about them. Grounds 1 and 2 for that applicant who, it will be recalled, was convicted only of the first count on the indictment, the offence of unlawful detention, complain respectively that the trial Judge erred in failing to adequately direct the jury as to the elements of that offence and the evidence available to prove it, and in failing to adequately direct the jury as to the defence case concerning count 1.
68 I have mentioned already that the Crown case in respect of the offence of unlawful detention was that each of the accused persons was charged as a principal offender under the Code, s 7(a). As I have said, the Crown alleged that "each of the six accused have all played a part in detaining the complainant against her will at the apprentices' quarters." And as I have said, the detention was said to have continued from the time when having entered the apprentices' quarters, the door was locked behind her until she was finally given her clothing and allowed to leave. Against that background, I note that the trial Judge reminded the jury how the Crown prosecutor had opened the case and effectively expressed his Honour's agreement that in this case the Crown had to prove that the six accused detained the complainant in the jockeys' room and/or in the shower and, secondly, that the detention was unlawful in the sense that it was not justified, authorised or excused by law. His Honour went on to observe that it is obvious that the detention would be unlawful "if you were satisfied that she was kept by the accused in either of those locations against her will."
69 To my mind the jury were adequately informed of the simple elements of this offence and, so far as the criminal complicity of each accused was concerned, they were effectively instructed that no accused could be convicted unless involved in some conduct which constituted detention of the complainant which was unlawful because against her will.
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70 SEM did not give evidence in his own defence and he called no witnesses, but he relied upon his out-of-court statements in his videoed interview. His Honour summarised that material, saying that:
"the accused told the police in his videotaped record of interview that he knew from what he had heard the complainant say and from what he had been told by the other accused involved in the first sexual episode, that the complainant was coming to the jockeys' quarters on the night of 22 May to have sex. He agreed that he and two others hid in the room so as to avoid her reaching the conclusion that there were too many people there. When asked by the police why he considered that necessary, he replied that the numbers would probably have scared her off and she would not have done what she did. While in hiding, he claims he saw the complainant having what he described as consensual sex with the accused MJM, WRH and CKH."
- His Honour then continued to describe the statements made by this applicant in respect of the sexual activities which he witnessed or in which he was said to have participated.
71 To my mind the manner of putting the Crown case in respect of the offence of unlawful detention and his Honour's adoption of it, did not adequately address in a complete way the basis in law for a conclusion that this applicant was criminally complicit in the unlawful detention. But that does not mean that the conviction should be quashed because, in my opinion, the Crown case was put too narrowly. I can see no evidence that the applicant was guilty of any act of detention as a principal offender but, to my mind, there was ample evidence which made him guilty of that offence as an aider once the jury found that the applicant was a party to a plan to keep the complainant in the apprentices' quarters against her will. In that event, by being one of those who hid when she initially came into the room so that she would not be frightened away before her presence there could be secured, and by thereafter participating in (albeit in a limited way) and lending his encouragement to what was occurring in so far as it involved her continued detention, whether during the performance of consensual acts of a sexual character or acts which he believed reasonably to be of that character or not, SEM would be guilty of aiding the act of unlawful detention of the complainant.
72 While the defence of SEM in relation to the sexual offences with which he was charged, whether as a principal offender or an aider, was that the complainant was consenting, or at least that he honestly and
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- reasonably believed that that was the case, his defence to the unlawful detention appears to have been that if that was against her will, and after all she was locked in the room and unable to leave until they permitted her to do so, then he honestly and reasonably believed that she was consenting to that as well. The defence is difficult to discern. The evidence capable of raising it seems to me to be non-existent and I find it difficult to see what the trial Judge might have said about it. In truth, SEM's best answer to the charge of unlawful detention appears to lie in the proposition, which the jury rejected, that the complainant was there willingly and a willing participant in what occurred, and so was not detained in fact, or it was not against her will.
73 In my opinion Muller J correctly appreciated the basis of the conviction of the applicant SEM of unlawful detention when, in addressing the applicant at the time of sentence, his Honour said:
"By its verdict the jury obviously found that you were a party to a plan to keep the complainant in the room against her will. From what you told the police in your videotaped record of interview I am satisfied that you and the two others hid, knowing the plan was to persuade the complainant to take part in sexual activities. Consistently with the jury's verdict, I am satisfied that you remained present for most of the incident both in the bedroom and in the shower, with the intention of lending support and encouragement to the others to keep the complainant in the house against her will. Since, however, you were found not guilty of all the sexual charges, I cannot find that the purpose of the complainant's detention as far as you were concerned was to take sexual advantage of her without her consent."
74 In my opinion that was a sensible and supportable basis upon which to consider that the jury reached the verdict of guilty of unlawful detention against SEM. It expresses the jury's satisfaction beyond reasonable doubt that he participated in the process of her detention knowing that she was being held against her will, even though the jury were not satisfied beyond reasonable doubt that SEM, in committing the act of sexual penetration he performed and in the aid and encouragement he lent to the activities of others, did not honestly and reasonably believe that she was a consenting party.
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Inconsistency of verdicts
75 I would not uphold grounds 1 and 2 relied upon by this applicant and it remains only to consider whether, nonetheless, the conviction of this applicant for unlawful detention was inconsistent with his acquittal of the remaining counts on the indictment against him so as to require the conviction to be quashed. This is the complaint made by ground 5 advanced for SEM and with it may be considered ground 6, which is a complaint that the evidence was insufficient to support the conviction for unlawful detention in a manner particularised in the further and better particulars given of the ground of appeal.
76 As to inconsistency of verdict, in Jones v The Queen (1997) 191 CLR 439 the High Court made it clear that the question whether a conviction was unsafe or unsatisfactory in this context was to be answered by asking whether it was open to the jury on the whole of the evidence to be satisfied of the guilt of the applicant of the offence of which he or she was convicted, having regard to the acquittal of the other offence or offences by the verdict of the jury. The question is whether the verdicts may be reconciled or whether the acquittal necessarily impugns the conviction: see also Osland v The Queen (1998) 197 CLR 316.
77 SEM, I am satisfied, could properly be convicted by the jury of the unlawful detention offence simply because the jury were satisfied beyond reasonable doubt that he participated in a process of detaining the complainant against her will. On the other hand, there was little evidence to support his commission of the act of sexual penetration charged against him as a principal offender and the evidence about that incident was, from various sources, inconsistent as to when it occurred and the circumstances in which it occurred. The acquittal may be explained simply upon the basis that the jury were left with a reasonable doubt about what occurred and when, in respect of this count. In addition, the question of the negation beyond reasonable doubt that SEM honestly and reasonably, though mistakenly, believed the complainant was consenting, was a matter which depended very much upon the jury's conclusions as to his subjective impressions about what was occurring and whether in the circumstances as they were presented to him, his belief, if he had one, was reasonable.
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78 Having reviewed all the evidence, and focusing particularly upon those events which were said to have been witnessed by SEM, and what his participation was, it may be that it could be argued that the jury took a charitable view of the extent to which SEM provided aid and assistance to others, and the extent to which it could be said that the evidence fell short of establishing beyond reasonable doubt, not the non-consent of the complainant, but that SEM may have honestly and reasonably believed she was consenting. But that is not to demonstrate inconsistency or a reason to set aside the verdict of conviction upon the ground that the evidence was in any way insufficient to support the conviction for unlawful detention.
79 In the final analysis therefore, I would refuse leave to appeal against the convictions sustained by each of the applicants.
80 OWEN J: I have read, in draft form, the reasons for decision that Murray J proposes to publish. I agree with those reasons and with his Honour's conclusion that the application for leave to appeal against the convictions lodged by each of the applicants be dismissed. I wish only to make a brief comment on one aspect of the applications.
81 In the amended grounds of appeal, the applicants other than SEM (to whom I will refer, for these purposes, as "the applicants") asked the Court to consider the construction of s 324 and s 326 of the Criminal Code, and in particular the extent to which the offence of sexual penetration without consent involves a mental element. In this regard I will comment on the offence itself rather than on an attempt to commit the offence or on a defence available under the Code. Attempts and defences seem to me to raise different issues.
82 It is apparent from the way in which counsel for the applicants advanced the argument that he was relying on the common law concept of mens rea. This refers to the state of mind of an offender required to constitute a particular offence. The requisite state of mind may vary between crimes. The mental element of an offence may be constituted by actual intention or it might arise from recklessness. Intention has been held to be an everyday term that does not require a technical definition: R v Moloney[1985] AC 905.
83 In construing s 324 and s 326, the ordinary principles of statutory construction in relation to codifying statutes are to be applied. It is a well-settled rule that the meaning of a Code provision is to be ascertained from its language. The words used must be given their natural meaning:
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- Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd(1987) 163 CLR 236 at 243. If there is an ambiguity or the language is not clear in presenting the intention of the legislature the Court can examine the context of the words through earlier decisions or by use of the meaning attributed to words contained in earlier Acts of analogous subject matter: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd(1985) 157 CLR 309 at 315.
84 Counsel for the applicants submitted that the offence of sexual penetration without consent has a mental element. The argument stems from a presumption articulated in Sherras v De Rutzen[1895] 1 Q.B. 918 at 921, and adopted by both Gibbs CJ and by Brennan J in He Kaw Teh v The Queen(1985) 157 CLR 523 at 528 and 565 respectively:
"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered."
85 It has to be borne in mind that the cases referred to arose under the common law. Neither involved sexual offences. The subject matter of the offence in the context of the statute that creates the offence is a relevant consideration.
86 Counsel for the applicants, relying on He Kaw Teh, submitted that there is a presumption that mens rea is an essential ingredient in every statutory offence in this country. At common law such a presumption arises even where the relevant statute is silent on the mental element. But it may be rebutted in certain circumstances: Pharmaceutical Society of Great Britain v Storkwain Ltd[1986] 2 All ER 635. It follows that under the common law, an element of the crime of rape is that the perpetrator intended to have intercourse with the complainant with or without consent: DPP v Morgan[1976] AC 182; R v Brown(1975) 10 SASR 139 at 140 - 141. The prosecution must prove beyond reasonable doubt that the perpetrator knew or was reckless to the fact that the other person was not consenting to sexual intercourse: R v Saragozza [1984] VR 187 per the Court.
87 He Kaw Teh stands as authority for the proposition that the presumption applies to statutory offences in the common law jurisdictions of this country. But even there it may not necessarily reflect completely the common law concept of mens rea. As Gibbs CJ pointed out,at 529,
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- the presumption is not easy to apply. It requires the court to consider whether Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind. Even if it does apply the exact nature and extent of the relevant mental element falls to be determined by the scope, purpose, content and language of the particular statute.
88 It is not at all clear that their Honours in He Kaw Teh intended to extend the presumption to all statutory offences in Code States, although some support for that view may be found in the remarks of Wallwork J inTracey v The Queen(1999) 20 WAR 555 at 569 - 570. But even if it does, the applicability and extent of the mental ingredient falls to be determined in accordance with the particular provisions of the relevant statute.
89 The Code expressly provides that some offences are crimes of specific intent. Wilful murder is an example. In a more general sense, the mental ingredient of offences in the Code is dealt with in Chapter V. Those rules apply to statutory offences generally: s 36. Given those specific provisions it is difficult to see how or why the presumption would apply to statutory offences in this State. Whether or not that is correct as a general proposition it remains necessary to examine the sections of the Code that create the offences with which we are concerned in this appeal.
90 Section 326 of the Code provides:
"A person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years."
91 The elements of the offence of sexual penetration without consent are clearly expressed in this section and in s 319, which contains the relevant definitions. One of the elements is that the complainant did not consent. However, if that is seen to introduce a mental element it solely relates to the mental state of the complainant. The Code, by its wording, does not suggest that a corresponding state of mind of the offender is relevant. There is nothing in the wording of the section to suggest that, for the offence of sexual penetration without consent to be made out, (and subject to anything that might arise under s 24) the Crown must establish that the offender knew that the complainant was not consenting.
92 Before the amendments to the Code that were introduced by the Acts Amendment (Sexual Assaults) Act 1985 the crime which most closely
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- resembled that which is now constituted by s 326 was the crime commonly called rape. Section 325 of the Code was in this form:
"Any person who has carnal knowledge of a woman or girl, not his wife, without her consent or with her consent if the consent is obtained by force, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape."
94 The next step is to compare s 325 (as it then stood) with s 326. The references in the former to the position of a married woman are a reflection of an attitude to the institution of marriage which has passed into history. It has nothing whatsoever to say about the state of mind of the perpetrator of the crime. The expanded concept of consent which is found in s 325 has now been transferred into s 319(2) in similar terms. The phrase "carnal knowledge" has been replaced by the defined term associated with the concept of penetration. Looked at in this light, the change from s 325 to s 326 has not effected any material alteration to the underlying concepts that would justify re-examining the reasoning in Attorney-General's Reference (No 1 of 1977) insofar as it negatived the view that rape was a crime of specific intent.
95 It seems to me that the intention of Parliament appears clearly from the language it has used. The crime of sexual penetration without consent under s 326 is not a crime for which the Crown must establish that the perpetrator had a specific intent. There are other examples in the Code of instances where Parliament has seen fit to provide expressly that the offence is only established if there is a specific intent. Sections 278, 338A and 397 are just three examples.
96 In the context of this case it seems to me not to matter a great deal whether it is said that the presumption does not apply at all or that it may apply but that it is rebutted by the words of the statute. The same result ensues. The language that Parliament has used in s 326 is clear. It does not admit of a conclusion that it is a crime that involves a specific mental
ingredient. In my opinion the applicants' argument concerning a mental element in the offence of sexual penetration without consent cannot be sustained. In my view the trial Judge correctly directed the jury as to the elements of the offence of sexual penetration without consent, in accordance with the law.
97 Without going to them in detail, I should say that I take the same view of the proper construction of s 324 (aggravated indecent assault) and s 333 (deprivation of liberty).
98 This is not to say that, in relation to sexual offences of this kind, the concept of a mental ingredient is totally irrelevant. It may arise, for example, under s 4 and s 24 of the Criminal Code. Upon the application of s 24, the intention or state of mind of the accused becomes relevant. Similarly, an act of attempted sexual penetration without consent would involve an evaluation of the intention of the accused. The element of intention is only relevant to the offence of sexual penetration without consent when it is an attempt as defined in s 4 or when the defence of mistake of fact is raised, as defined in s 24.
99 In relation to s 24 the Crown must negate beyond reasonable doubt the honest and reasonable belief of the accused as to the state of things. In the context of the offence of sexual penetration without consent the relevant state of things is the consent of the complainant. The critical question is whether the accused honestly and reasonably, although mistakenly, believed the complainant was consenting. Once again, I do not believe that the trial Judge erred in the directions he gave to the jury on this aspect of the case. There is nothing I can usefully add to what Murray J has said on this issue.
100 PARKER J: For the reasons now published by Murray J, with which I agree, I too would refuse leave to appeal against the convictions of each of the applicants.
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