Butler v The State of Western Australia - [2013] WASCA 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BUTLER -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 242

CORAM: McLURE P
BUSS JA
HALL J

HEARD: 6 SEPTEMBER 2013

DELIVERED : 18 OCTOBER 2013

FILE NO/S: CACR 50 of 2013

BETWEEN: PHILLIP ARTHUR BUTLER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DERRICK DCJ
File No  :IND 866 of 2012

Catchwords:

Criminal law - Appeal against conviction - Sexual penetration without consent - Criminal Code (WA), s 24 - Whether trial judge erred in refusing to leave to the jury the defence of honest and reasonable but mistaken belief as to consent

Criminal law - Conviction for sexual penetration without consent quashed on appeal - Acquittal or new trial - Whether it would be unjust to order a new trial of the appellant

Legislation:

Criminal Appeals Act 2004 (WA), s 30(4), s 30(5)
Criminal Code (WA), s 24, s 325

Result:

Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered

Category: A

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms S H Linton

Solicitors:

Appellant: Paxman and Paxman Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

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

Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Narkle v The State of Western Australia [2011] WASCA 160
Naysmith v The Queen [2013] WASCA 32
R v Parker (1990) 19 NSWLR 177
R v Storey [1998] 1 VR 359
Schmidt v The State of Western Australia [2013] WASCA 201
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22
Table of Contents

McLure P's reasons.................................................................................................................. 5

Background
Intellectual impairment
The ground of appeal
Whether there should be a retrial
Buss JA's reasons................................................................................................................... 15
The issue at trial
The ground of appeal
The State's concession
Overview of the State's case at trial
Overview of the appellant's case at trial
The complainant's evidence at trial
The appellant's video recorded interview with the police
The appellant's sworn evidence at trial
The trial judge's ruling on s 24 of the Code
The jury's questions
The significance of the jury's questions
The sentencing hearing
The significance of the trial judge's sentencing remarks
Section 24 of the Code: applicable legal principles
When should the defence under s 24 of the Code be left to the jury?
The merits of the ground of appeal
Should this court order a new trial or enter a judgment of acquittal?

Conclusion
Hall J's reasons....................................................................................................................... 45

McLURE P: I agree with Buss JA that the appeal against conviction should be allowed, the conviction set aside and a retrial refused. These are my reasons for joining in those orders.

Background

The facts and other relevant background are detailed in Buss JA's reasons. I will avoid unnecessary repetition. The appellant was convicted of sexually penetrating the 42‑year‑old complainant without her consent in the early hours of the morning of Monday 20 February 2012. The events occurred in the lounge room of a house the complainant shared with the appellant and his friend, Leslie Jones, who rented the house.
The State's primary case was that the complainant woke up to find the appellant on top of her and that without giving him any permission or any encouragement, the appellant proceeded to have sex with her despite her telling him to stop. The State's fall‑back position was that if the jury was not satisfied beyond reasonable doubt that things happened as the complainant said they did, the appellant was guilty of the offence because, on the appellant's version of events to police, he continued to have sexual intercourse with the complainant after she withdrew her consent previously given.
The appellant was aged 50 at the time of the offence. At around 5.30 pm on 20 February 2012 the complainant left the house saying to the appellant words to the effect 'I'm gonna have you for rape'. At 9.51 pm on the same day the complainant messaged the appellant on his mobile telephone. The message said 'You're f‑k‑e‑d you rapost dog. You aren't getting away with it'.
The next day the appellant went to the Morley Police Station 'to put things straight'. After giving his account, Morley Police told the appellant to go to the Police Sexual Assault Squad in Perth. He went straight there. After some unrecorded exchanges with police, the appellant was arrested.
After his arrest, the appellant participated in a video recorded police interview. At the time of the interview, police had not taken a detailed statement from the complainant. As the police interviewer explained:
I haven't had a chance to really talk to [the complainant] in depth yet so it's, um, we've kinda got it different. You've, um, normally we go and talk to the person that’s made the complaint and then we go and talk to you but today you've come in off, off your own back and you're talking to us so it's working backwards today. That's why it's a bit different than what we normally do (ts 38).

Intellectual impairment

On reading the transcript of the appellant's police interview and his evidence at trial, I formed the view that the appellant had a material intellectual impairment. In the police interview the appellant was unable to give his address (ts 3) notwithstanding that he had lived there for some time; he said he could only read and write English 'a little bit' (ts 3); he could not remember what he had been told by police 10 minutes earlier as to the rights of an arrested suspect (ts 4); after being informed of his right to silence, he was unable to provide a meaningful substantive response to police questions designed to elicit whether or not he had understood the caution (ts 5, 6); the interviewers had great difficulty getting the appellant to focus on what happened on the night in question (ts 32, 33 ‑ 34, 35 ‑ 36); and there are difficulties in following the appellant's train of thought and the relevance of many of his answers (ts 27 ‑ 28, 31 ‑ 32).
Some examples illustrate the last point. The appellant told police that his mum did not like the complainant (ts 27). The interview continued:
Q. Mm, yeah.
A. Cos I rung my mum up about half an hour ago.
Q. Mm.
A. When I was coming here.
Q. Yeah.
A. And I rang my mate up.
Q. Mm. Yeah.
A. And they don't like her and I've got another mate out there ‑ ‑ ‑
Q. Mm.
A. ‑ ‑ ‑ don't like her.
Q. Mm. Okay.
A. Because she lives in Armadale at Sherwood and Hexham Ave ‑ ‑ ‑
Q. Mm.
A. ‑ ‑ ‑ number 16 Hexham Ave.
Q. Yeah.
A. She walked out of the house (ts 27 ‑ 28).
After being questioned about the messages sent by the complainant to the appellant on 20 February 2012, the appellant said that he does not text but rings. The interview continued:
Q. So you ring, yeah.
A. I will run to that one but the other one I didn't.
Q. Mm.
A. Because I don't take it lightly.
Q. Mm.
A. And nor does my mum.
Q. Mm.
A. None of my family will take her lightly and one of mates won't ‑ ‑ ‑
Q. Mm.
A. ‑ ‑ ‑ take her lightly (ts 31 ‑ 32).
Another example is when the appellant seeks to explain why he got his mum to ring the complainant which leads to an explanation about his sister having been murdered, his best mate having been murdered and his father being a suspect and so on (ts 32 ‑ 33).
No objection was made on behalf of the appellant to the admissibility of the video record of interview on the ground of involuntariness or other unfairness. As to which, see R v Parker (1990) 19 NSWLR 177, 183 ‑ 184.
No expert evidence relating to his cognitive capacity was adduced on behalf of the appellant at trial. However, the defence case at trial was that the appellant had 'some intellectual disability' and that people (including the complainant) called him by his nickname, 'Phil the dill' (ts 51).
The appellant also had great difficulty answering questions in‑chief at trial, frequently responding that he could not remember or he did not know (ts 173, 174, 175, 176, 178, 180, 181, 182, 184). The same was also the case in cross‑examination (ts 186, 188, 190, 191, 193, 195, 196, 197, 198, 199, 200, 201, 202, 203).
There were other obvious difficulties in communication. The appellant was cross‑examined at trial about the purchase of jewellery as follows:
The only jewellery you bought her was the necklace this year for Valentine's Day---Quite a lot.
Beg your pardon? Quite a lot?---You deaf?
Did you say, 'Quite a lot'?---Yeah (ts 189).
Regarding his previous sexual encounters with the complainant, the following exchange occurred:
You said that you'd had sex with her on Valentine's Day of this year?---Mm hmm.
So do you recall having sex with her on Valentine's Day this year?‑‑‑Nuh.
You don't recall that?‑‑‑ (No audible answer).
In fact, you didn't have sex with her on Valentine's Day, did you?---Nuh.
Do you agree with me that you didn't?‑‑‑Yeah, I did.
You did have sex with her on Valentine's Day?‑‑‑Yeah (ts 194 ‑ 195).
After the appellant's evidence that the complainant asked him for and he gave her oral sex (ts 197), the following exchange occurred:
The truth is that you got on top of [the complainant] without anything happening first. There was no oral sex beforehand?‑‑‑I know (ts 198).
Three questions later he said:
She asked me to lick her out. So I did. So then after that I had it with her. And I didn't rape her (ts 198).
The appellant's friend and housemate, Mr Jones, also had difficulties in giving evidence. The assessment that the appellant has a material intellectual disability is consistent with that of the jury. A jury question to the trial judge, after having retired to consider its verdict, was whether the appellant was competent to stand trial (ts 273).
There being no appeal against sentence, this court had not been provided by the parties with the sentencing material or the trial judge's sentencing remarks. That material was obtained by the court. It included expert evidence as to the appellant's cognitive capacity. There was a conflict of expert evidence on the subject which the trial judge was able to resolve by reference to him having seen and heard the appellant at trial. He said:
I've had the advantage of observing you when you were interviewed by the police and when you gave your evidence. Having observed and listened to you, and taking into account the results of the psychometric testing carried out by the psychologist, I have no doubt that you do have a low intellectual capacity, certainly well below the average (ts 303).
As the expert evidence was not adduced at the appellant's trial, I put it to one side for the purpose of deciding the appeal against conviction. However, it is relevant that this court's assessment based on the trial record is also consistent with that of the trial judge (and the psychologist).

The ground of appeal

The sole ground of appeal is that the trial judge erred when, over objection, he refused to leave to the jury the defence of mistake pursuant to s 24 of the Criminal Code (WA). The appellant claims the trial judge erred in concluding that the appellant had not satisfied the evidentiary burden of raising the mistake defence.
The relevant question is whether there is evidence which, taken at its highest in favour of the appellant, could, as a matter of law, lead a reasonable trier of fact to have a reasonable doubt that the appellant honestly believed on reasonable grounds that the complainant consented to the sexual activity the subject of the charge: Braysich v The Queen (2011) 243 CLR 434 [17], [36]; Narkle v The State of Western Australia [2011] WASCA 160 [2]. As the defence of mistake only arose for consideration if the jury was satisfied beyond reasonable doubt that the complainant did not consent, the evidentiary burden will only be satisfied if there is a version of the facts which leaves open, as a reasonable possibility, that the appellant could honestly and reasonably but erroneously believe that the complainant consented: Narkle [3].
An accused's intellectual disability is relevant to both what the accused believed and whether he has reasonable grounds for that belief. As stated in Aubertin v The State of Western Australia (2006) 33 WAR 87 [43]:
For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element) … The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself … It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities.
It is clear from the trial judge's reasons for refusing to leave the defence of mistake to the jury (set out in Buss JA's judgment) that, in considering whether the appellant had discharged the evidentiary burden, he failed to take into account the appellant's intellectual disability, both in relation to what the appellant honestly believed and whether he had reasonable grounds for that belief.
That was a material omission, as is evident from jury question number 4 to the trial judge:
If Phil did not understand that consent had been withdrawn then can we convict him of sexual penetration without consent? (ts 261)
The appellant's case at its highest is in the police interview, which is materially consistent with his testimony at trial. On the appellant's version of events, at the complainant's request he performed cunnilingus in which she actively participated (ts 24) following which, with the complainant's implied consent, he put his penis in her vagina; at some later stage during intercourse the complainant said 'Get off. I could have you for rape' and he continued with intercourse for some period thereafter.
There was other relevant evidence in the police interview. After the complainant said 'Get off. I could have you for rape' she did not try to push him off at all (ts 36). Further, at one stage during intercourse (whether before or after the 'rape' statement is unknown) the complainant also told him to 'Get off me stomach'. This information emerged after the police questioned the appellant about whether he was holding the complainant's hands above her head. He said no, his hands 'w[ere] down there' because after she told him to get off her stomach because she was hurting, he lifted himself right up and was in the air (ts 37). The complainant was, to the appellant's knowledge, pregnant.
There is also some evidence that this was not the first occasion on which the complainant had said something about rape during intercourse. There is an unexplored suggestion by the appellant that the complainant had 'cried wolf' previously. The appellant said:
A. She's done this twice.
Q. Mm. When? When was the other time?
A. Once in the bedroom but she didn't say anything. She didn't have me for rape for that because it was not rape.
Q. Mm.
A. And now another one and Burswood Motel (ts 26).
I infer the statement that 'she didn't say anything' is a reference to contacting the authorities. On further questioning about what happened at the Burswood Motel, the following exchange occurred:
Q. You just had normal sex?
A. Mm.
Q. Consensual sex between yourself and, um, [the complainant]?
A. But then after that I didn't.
Q. Mm'hm. And you said---
A. I didn't want it anymore so I got off (ts 27).
There is sufficient evidence to satisfy the evidentiary burden that the appellant believed on reasonable grounds that the complainant's consent, freely and voluntarily given, had not been withdrawn. First, there was compelling evidence that the appellant honestly believed that he had not raped the complainant, expressing bewilderment and anger that such a charge had been levelled against him by the complainant. Second, on the appellant's version of events, there was nothing in the complainant's conduct before saying 'Get off. I could have you for rape' to suggest that she intended to withdraw her consent to intercourse. Further, on the appellant's version, the complainant's conduct after that statement was not obviously consistent with the withdrawal of her consent. A hypothetical ordinary reasonable person is likely to have been blindsided and somewhat confused by the statement, which is contextually inconsistent with her other conduct and which, on its face, refers to what has already happened not what will happen if he did not 'get off'. A person with an intellectual disability is likely to be at a significantly greater disadvantage. Third, the appellant's evidence at trial was that he did not know what the complainant meant by her statement (ts 199 ‑ 200) and that she did not say that he did not have her permission to (continue to) have sex with her (ts 199).
Thus, there was evidence at trial that the appellant believed that the complainant had consented to intercourse (which was continuing consent until withdrawn) and that he did not understand that she had later withdrawn her consent. That is sufficient to satisfy the evidentiary burden for the wholly subjective element of the defence of mistake in this case. There did not have to be an evidentiary basis for the appellant to have a positive belief of a negative, namely that the complainant was not, by her verbal statement, objecting to the continuation of intercourse, as the trial judge required in his original ruling relating to mistake (ts 210 ‑ 211).
Later, in response to jury question 4, the trial judge directed the jury that there was no evidence before it that the appellant 'did not or may not have understood that consent had been withdrawn'. He continued:
The whole of [the appellant's] case has been presented on the basis that the sexual activity was consensual … from the moment of initial penetration to the end of the act. His case is that it was consensual. There's no evidence before you that he did not understand that in fact consent had been withdrawn.
So if you are satisfied beyond reasonable doubt contrary to the case that is advanced on [the appellant's] behalf that [the complainant] withdrew her free and voluntary consent to the sexual penetration and that [the appellant] continued to sexually penetrate her after she withdrew her free and voluntary consent, you will find [the appellant] guilty (ts 269).
The trial judge erred in concluding that there was no evidence before the jury that the appellant did not understand that in fact consent had been withdrawn. If the jury concluded that, in all the circumstances, the complainant's statement 'Get off. I could have you for rape', did constitute the withdrawal of the complainant's free and voluntary consent, a clear inference from the appellant's evidence is that he did not understand that consent had been withdrawn.

The trial judge erred in failing to leave the defence of mistake to the jury. The State conceded, correctly in my view, that if the defence of mistake should have been left to the jury, there was no scope for the application of the proviso. Accordingly, the appeal should be allowed and the conviction set aside.

Whether there should be a retrial

The power to grant a new trial is discretionary, the question being whether the interests of justice require it: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627. The strength of the State case is a relevant consideration: Fermanis v The State of Western Australia (2007) 33 WAR 434 [190] ‑ [193]. On that subject, it is appropriate to refer to the facts found for the purpose of sentencing.
The jury gave a general verdict of guilty. The factual basis on which the appellant was convicted was not made known. Provided the facts found by a sentencing judge are not inconsistent with the jury's verdict, the judge may make an assessment of an offender's degree of culpability which would not be supported by all, or perhaps any, members of the jury: Cheung v The Queen (2001) 209 CLR 1. However, an aggravating circumstance must be established beyond reasonable doubt. The required consistency is with the decision of the jury upon the issue or issues joined for trial as distinct from the facts relevant to an issue and the evidence. Having removed mistake from the jury, the only issue joined at the appellant's trial was on the question of consent.
In sentencing, the trial judge rejected the complainant's evidence that she had never had sexual relations with the appellant and that he had not given her money and other gifts. The trial judge found that the appellant had bought the complainant various items of jewellery, including an engagement ring which she took without having any intention of marrying the appellant, and gave her significant sums of money. He also accepted the appellant's evidence that on a limited number of occasions the appellant and the complainant engaged in sexual activity.
After referring to the two different versions of what occurred, the trial judge concluded:
Overall I did not find [the complainant] to be an impressive or convincing witness. She appeared to me to be hesitant and evasive when it came to answering a number of questions in cross‑examination.
Furthermore, and as is apparent from what I've already said about the nature of [the appellant's] relationship with her in the years prior to the commission of the offence, I am satisfied that her evidence to the effect that you did not give her money and did not spend money buying her gifts was untruthful.
Another aspect of [the complainant's] evidence which caused me concern so far as her credibility was concerned related to her evidence about an allegation of sexual assault that she had made to the police in 2006 which the police ultimately did not pursue to prosecution.
When [the complainant] was asked questions about this complaint in cross‑examination she said in substance that she could not remember making the complaint. I simply do not accept that her evidence to that effect was truthful (ts 296 ‑ 297).
After identifying some material inconsistencies between the contents of the complainant's statement to police (provided on 27 February 2012) and what she said in her evidence at trial, the trial judge continued:
Given my less than favourable view of [the complainant] as a witness and the material inconsistencies which, in my view, did exist between her statements to the police and her evidence, I am not satisfied beyond reasonable doubt that [the complainant's] evidence as to the incident the subject of the charge was, in all respects, honest and accurate.
I will therefore sentence [the appellant] on a factual basis which is substantially, albeit not entirely, consistent with the version of events that [the appellant] provided to the police and during the giving of your evidence (ts 298).
However, the facts of the offending as found by the trial judge were not substantially in accord with what the appellant told police. He found that (1) the complainant invited the appellant to perform oral sex on her, which he did; (2) the complainant did not consent to the appellant inserting his penis into her vagina; (3) the complainant attempted to prevent him from doing so but the appellant overpowered her and restrained her by holding her arms down; (4) during intercourse the complainant made it clear to the appellant that she was not consenting by telling him to get off and that she would have him for rape; and (5) that the appellant ignored her statements and continued to have sexual intercourse until he ejaculated in or on her vagina. Findings (2), (3), (4) and aspects of (5) are inconsistent with the appellant's evidence.
Having found that the complainant was not an impressive or convincing witness, I am unable to see how the trial judge could be satisfied beyond reasonable doubt of facts that depended solely on her evidence and which aggravated the seriousness of the offending.
As noted above, the trial judge accepted the psychologist's assessment of the appellant, based on psychometric testing, that he was in the extremely low range of intellectual capacity. In particular, his 'verbal score', which evaluated his skills in understanding verbal information, thinking with words and expressing thoughts in words, was in the

extremely low range. The trial judge also accepted the opinion of the psychologist that the appellant was at a low risk of offending in a similar way in the future.

The principles relating to the sentencing of offenders with an intellectual disability were stated by the High Court in Muldrock v The Queen (2011) 244 CLR 120 and applied by this court in Naysmith v The Queen [2013] WASCA 32. The High Court endorsed the statement that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The trial judge sentenced the appellant to a term of immediate imprisonment of 2 years and 8 months. I am unable to reconcile acceptance of the psychologist's report as to the appellant's cognitive impairment and his financial and emotional exploitation by the complainant with the imposition of an immediate term of imprisonment.
Having regard to the trial judge's negative assessment of the credibility of the complainant, which accords with an objective reading of the record, the psychologist's assessment of the nature and extent of the appellant's intellectual impairment, and the need for an appropriate direction on the defence of mistake, the case against the appellant can be characterised as weak. Moreover, having already spent approximately 11 months in custody for the offence, even if there was a retrial resulting in a conviction, it is highly unlikely that any further punishment would be imposed on the appellant. I would refuse to order a retrial and enter a verdict of acquittal.
BUSS JA: This is an appeal against conviction.
The appellant was convicted, after a trial in the District Court before Derrick DCJ and a jury, of one count in an indictment.
The count alleged that on 20 February 2012, at Morley, the appellant sexually penetrated R, without her consent, by penetrating her vagina with his penis, contrary to s 325 of the Criminal Code (WA) (the Code).
The trial judge imposed a sentence of 2 years 8 months' immediate imprisonment. The sentence was backdated to 19 November 2012. A parole eligibility order was made.

The issue at trial

It was not in dispute at trial that on 20 February 2012, at Morley, the appellant penetrated R's vagina with his penis. The issue in contest was whether this sexual penetration was consensual.

The ground of appeal

The sole ground of appeal alleges that the trial judge erred in refusing to leave to the jury the defence of mistake under s 24 of the Code.
On 21 April 2013, Mazza JA granted leave to appeal.

The State's concession

The State conceded that if the ground of appeal was made out then the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should not be applied.
I will consider the correctness of this concession later in these reasons.

Overview of the State's case at trial

At trial, the State ran a primary case and an alternative case.
The State's primary case relied on the complainant's evidence. It was, relevantly, as follows.
As at 20 February 2012, the appellant and the complainant had known each other for several years.
They met while living independently at a caravan park. The appellant then moved to a unit in Armadale. The complainant, her partner and her child lived with the appellant at the unit for some time.
The complainant, her partner and her child then moved to their own home. The appellant and the complainant did not maintain contact. Some time later, they met again by chance and resumed their acquaintanceship. At that point the complainant was no longer living with her partner.
The appellant was then living at a house in Morley with a man, Leslie Jones. The complainant commenced living at the Morley house.
The appellant was interested in having an intimate relationship with the complainant. She did not, however, share his interest. As at 20 February 2012, the appellant and the complainant were not in a boyfriend/girlfriend relationship. They never had been.
The appellant made some overtures to the complainant. He bought her a necklace on Valentine's Day (14 February) 2012.
On the evening of 19 February 2012, the appellant, the complainant and a young woman, Kerry‑Anne Mathies, were watching a DVD in the lounge room at the Morley house. Ms Mathies was a temporary housemate. The other housemate, Mr Jones, was not at home. Ms Mathies went to bed, leaving the appellant and the complainant watching the DVD. The complainant fell asleep on a couch. She awoke and found, to her shock, the appellant lying on top of her. He had pulled down her pyjama pants and was having sexual intercourse with her. The complainant did not consent to the appellant putting his penis into her vagina. She had not given him the slightest encouragement. The complainant told the appellant that what he was doing was 'rape'. She demanded that he stop and get off her. The appellant continued to have intercourse with the complainant against her will, while she struggled, unsuccessfully, to get free. Eventually, the appellant finished and got off the complainant.
As at 20 February 2012, the complainant was, to the appellant's knowledge, several months pregnant to another man.
The State's alternative case was that, even if the jury was not satisfied beyond reasonable doubt as to the honesty and reliability of the complainant's version of events, the appellant was nevertheless guilty of the offence based on the version of events he gave to the police at a video recorded interview. The State alleged that, on the appellant's version, on the evening in question the complainant initially consented to sexual activity with the appellant but later, while he was having intercourse with her, withdrew her consent. The complainant made clear to the appellant the withdrawal of her consent by telling him, 'Get off, I could have you for rape'. Despite this statement, the appellant continued to have intercourse with the complainant for some time without her consent.

Overview of the appellant's case at trial

The appellant's case at trial was, in summary, as follows.
Defence counsel said, in his opening address to the jury, that a lot of people called the appellant, 'Phil the Dill' (ts 51). He had 'some intellectual disability', could not read or write and spoke slowly (ts 51). However, no expert evidence as to the appellant's intellectual capacity was adduced at trial.
It was contended that the sexual activity which occurred between the appellant and the complainant on the night in question was consensual.
Defence counsel told the jury, in his opening address, that the complainant had 'fleeced' the appellant (ts 51).
In late 2009 or early 2010, the appellant had obtained compensation for a personal injury in an amount of about $21,000. According to defence counsel, the appellant is easily led and the complainant 'led him along by the nose including with sexual favours over a period of time' with the object of obtaining money from him (ts 51). The complainant was being untruthful in asserting that the sexual intercourse had occurred without her consent. She was motivated by the desire to extract money from the appellant for the alleged offending (ts 51).

The complainant's evidence at trial

The complainant, who was aged 42, gave evidence that when she was living at the Morley house the appellant and her were 'just friends' (ts 55). They had never been anything other than friends. She had never made any approaches to him about a relationship. However, the appellant had had 'a thing for [her] for a long time' (ts 56).
On the evening of 19 February 2012 she was in the lounge room of the Morley house with the appellant and Ms Mathies. They were watching a DVD. At an early stage Ms Mathies went to bed. The complainant and the appellant remained in the lounge room watching the DVD. She fell asleep on the couch on which she was sitting.
The complainant awoke to find the appellant lying on top of her. His face was next to hers. He had pinned her arms above her head and was holding her wrists with one of his hands. The appellant had his penis inside her vagina. When she fell asleep she was wearing pyjamas and a singlet. Upon awakening, her pyjama pants were just above her knees and her singlet was up to her lower chest area. At the time she was 18 weeks pregnant.
According to the complainant:
I told him, 'what you're doing is raping me cos I've told you stop and you won't stop' (ts 62).
The appellant did not say anything in response. He kept having intercourse with her.
The complainant said the intercourse stopped when the appellant ejaculated in her vagina. She knew he had ejaculated because after the intercourse had finished she went to the toilet and wiped herself. When the appellant had finished he threatened that if she told anyone what had happened he would kill her. After the appellant had finished he got up. She did not know where he went. After going to the toilet, the complainant returned to the lounge room and fell asleep (ts 63 ‑ 64).
During cross‑examination:
(a)The complainant denied she had previously had sex with the appellant. She had never had a sexual relationship with him (ts 74 ‑ 75).
(b)The complainant admitted the appellant had bought her a necklace on Valentine's Day (14 February) 2012 (ts 74). She denied he had bought her any other items of jewellery. In particular, she said he had never bought her an engagement ring (ts 77 ‑ 78).
(c)The complainant denied asking for or taking money from the appellant on a regular basis or at all (ts 79 ‑ 80).
(d)The complainant rejected defence counsel's assertion that on the evening in question she initiated the sexual activity with the appellant by asking him to give her oral sex. She also rejected defence counsel's assertion that after the appellant gave her oral sex she 'allowed him to have intercourse with [her] for a period before telling him, "It's hurting", and "Get off"' (ts 104).
(e)The complainant agreed the appellant had told her that he was not going to ejaculate in her vagina. She did not realise he had ejaculated until she went to the toilet and wiped herself (ts 95).
(f)The complainant rejected defence counsel's assertion that her evidence that the appellant had threatened to kill her was a lie (ts 103).
(g)The complainant rejected defence counsel's assertion that she had taken advantage of the appellant and had 'ripped him off of all his money' (ts 104 ‑ 105). She also rejected defence counsel's assertion that she had alleged the sexual intercourse was without her consent because she was 'chasing compensation' (ts 104).
(h)The complainant rejected defence counsel's assertion that she had previously made complaints to the police about someone having sexually assaulted her (ts 81 ‑ 82).
Defence counsel cross‑examined the complainant on matters going to her credit including the making of prior inconsistent statements; prior convictions including for fraud, stealing and receiving; and previously having served a term of imprisonment (ts 82 ‑ 86, 92 ‑ 100, 105 ‑ 106). She admitted the prior convictions and the custodial sentence.

The appellant's video recorded interview with the police

On 21 February 2012, the appellant participated in a video recorded interview with the police. The State tendered the interview at trial.
The appellant said he could read and write English 'a little bit' (VROI ts 3). When asked about the level of education he had achieved, his response was, 'bugger all' (VROI ts 3).
The appellant admitted that he had sexual intercourse with the complainant on the occasion in question. He gave a general description of the sex act as follows:
Q.I didn't quite get the order that things happened but so if you tell us again would be good.
A.Well, I just pulled her pants down.
Q.Yeah.
A.Because she didn't bloomin do nothing about it.
Q.Mm.
A.And then she said, 'Lick me up,' so I did.
Q.Mm'hm. Okay.
A.Then I had it with her.
Q.You had it with her? What do you mean by that?
A.Had a root.
Q.Yeah. Okay. How did all that happen?
A.Well, I dunno.
Q.When you say you had a root, you mean put your penis into her vagina?
A.Mm.
Q.Is that what you mean by having a root? Yeah?
A.And she went and had me charged for trying to call it, have that a rape.
Q.Mm.
A.I don't think so because why would a woman say lick her out - - - (VROI ts 21 ‑ 22).
The appellant told the police officers that he had performed oral sex on the complainant for 'about five, 10 minutes' (VROI ts 24). He then said, 'why would she tell me to do that ... and then come and have me for a rape charge?' (VROI ts 24). He added, 'so if she wants to have me on a rape charge, go ahead … because it won't stick' (VROI ts 24).
One of the interviewing police officers asked the appellant about what had occurred, including what was said, while he was having intercourse with the complainant:
Q. ... I'm just trying to work out where your hands were when you were having sex with her.
A.Down the side where she was.
Q.Mm'hm. And whereabouts were her hands?
A.Dunno.
Q.No? Did was there any talking or anything while this was going on?
A.No, not that much.
Q.Not that much but some? What was being said?
A.She just turned around and said, 'Get off. I could have you for rape.'
Q.And did you get off?
A.Nuh. So what kind of woman would say lick her out (indistinct) don't wanna go back into all this.
Q.Mm. Mm. Yeah. And did yer - - -
A.So - - -
Q.Sorry, go ahead.
A.- - - that's it.
Q.Yeah. Did yer ejaculate?
A.Nuh.
Q.You didn't come?
A.Nuh.
Q.No. Why not?
A.Because I didn't do it in her. I went to the toilet.
Q.Okay. You went to the toilet. Did you ejaculate there?
A.Mm'hm (VROI ts 25 ‑ 26). (emphasis added)
Later in the interview, a police officer questioned the appellant further about the complainant's statement, 'Get off. I could have you for rape':
Q.... you said that, um, she said 'Get off. I could have you for rape,' was that when you were licking her out or when you were having sex?
A.When I was having sex.
Q.Okay. Um, and how long after she said that did you actually stop having sex?
A.Well, I didn't stop till I got off.
Q.And do you know roughly how long that was?
A.No, round about five, 10 minutes.
Q.Okay. And what was she doing during that time?
A.Lapping it up, I suppose, cos when I licked her out she lapped it up because she was saying, 'Lick me up,' so she was going up and down, up and down.
Q.Well, what do you think to yourself when she said, 'Get off. I could have you for rape,' while you're having sex?
A.Dunno.
Q.Why didn't you stop?
A.Mm?
Q.Why didn't you stop at that time?
A.I dunno. Whatever she said.
Q.Okay. Did she try and push you off at all?
A.Nuh (VROI ts 36). (emphasis added)

The appellant maintained that he did not hold the complainant's hands while he was having intercourse with her and he did not ejaculate in her vagina:
Q.[The complainant has] said that while you were having sex that, um, you held her hands up above her head.
A.No.
Q.No?
A.Wrong. I didn't hold her hands at all.
Q.No? That's why I was asking you where your hands were.
A.Because my hands was down there.
Q.Yeah. Okay.
A.I was up in the air.
Q.You were on top of her?
A.Yeah, I was up in the air.
Q.Yeah.
A.Because she told me, 'Get off me stomach.'
Q.Mm'hm.
A.She was hurting.
Q.Okay.
A.So I lifted myself right up.
Q.Okay.
A.So I never holded her hands at all.
Q.Yeah.
A.So she told a lie there. So if you wanna believe her, you're believing the wrong person.
Q.Mm'hm. And, um, why didn't you ejaculate inside her?
A.I didn't want to.
Q.Why's that.
A.Because I told her I'm not going to.
Q.Yeah. Any reason?
A.Well, she's pregnant - - -
Q.Mm.
A. - - - to someone else (VROI ts 37 ‑ 38).
Finally, there was this further exchange as to when the appellant finished having intercourse with the complainant:
OFFICER HART: Mm. Just the last thing is, when, after she said, 'Get off. I could have you for rape,' did she say anything else after that?
A.Nuh.
Q.Okay. So what made you get off in, in the end?
A.When I was finished I got off.
Q.Okay.
A.Then I went back down and went back to sleep (VROI ts 39). (emphasis added)

The appellant's sworn evidence at trial

The appellant gave sworn evidence at trial.
He was aged 51. He was born in New Zealand and came to Australia in 1992. He ceased schooling when he was about 13. He never passed any examinations. He can read 'a little bit' and write 'a little bit' (ts 156).
The appellant has a history of unskilled employment. He has washed cars, helped demolish houses and worked at a rubbish tip (ts 157).
In 2006 he was injured in a motor vehicle accident. In 2010 he received compensation for his injuries in an amount of about $21,000 (ts 157 ‑ 158).
The appellant said he met the complainant at a caravan park. His relationship with her was 'like boyfriend/girlfriend' (ts 159). He bought her a number of gifts with his compensation money including a computer, an engagement ring and a mobile telephone (ts 159, 163 ‑ 164). He also gave her substantial amounts of cash (ts 161, 165 ‑ 166).
According to the appellant, he and the complainant had had consensual sex on numerous occasions before the alleged offence on 20 February 2012. They had previously had sex at the Flag Motor Lodge in Rivervale (ts 162 ‑ 164), at his unit in Armadale (ts 172 ‑ 174) and at her unit in Maylands (ts 175). The appellant said he had sex with the complainant on Valentine's Day (14 February) 2012; that is, six days before the alleged offence (ts 177).
During his evidence‑in‑chief, the appellant gave this account of the incident in question:
[Ms Mathies] was there, [the complainant] was there, you were there. What happened after that? ... - - - [Ms Mathies] went to bed and it was only me and [the complainant].
Yes---And then she asked me to lick her out so I did then I had sex with her and that's why she's setting me up for rape charge what I didn't do.
How long did the sex go for? Let me ask you a different question. If I say to you five minutes, do you have any concept of how long that is---No.
If I say to you five to 10 minutes, do you have any idea how long that is---No.
At the time that you had sex with [the complainant] ... you said you licked her out at her request first of all and then you had sex with her‑‑‑Yeah.
… can you say how long all of that took---No, I don't know.
... remember when we stopped the court a while ago and then we started again just now, can you say [the] time … you were licking her out and you had sex with her was longer than that period or shorter than that period---Shorter.
...
How did you do it? Where were you positioned and where was she positioned---On the couch.
Yes. Who - who on top of who---I was on top of her.
And where were her - her hands---They were down beside her.
Where were your hands---Mine was down the side.
Did you at any time hold her hands above her head---No.
By the wrists, across the wrists like that---No.
Did you at any time force her to do anything---No.
Did she say anything while you were having sex with her---Don't know.
Don't know or don't remember---Can't remember.
Did you ejaculate---No.
Why didn't you---I just got off.
Do you remember why you just got off---I didn't want to do it inside her.
Okay. Why didn't you want to do it inside her---I didn't want to.
Okay. Did you say anything to her afterwards like, 'If you tell anyone about this, I'll kill you'---No.
Do you remember any conversation that happened---Can't remember.
So what did - what did she do after you finished with this sex? What did she do---Can't remember.
What did you do---Don't know (ts 180 ‑ 182).
Towards the end of the examination‑in‑chief, defence counsel asked the appellant whether the complainant had told him to stop while they were having intercourse and, if so, whether the appellant did not stop but kept going:
[The complainant] claims that ... she either woke and you were already inside her or she woke and then you went inside her and had sex with her without her permission. What do you say to that---She asked me to lick her out.
Yes---So I did.
Was there any objection from her when you had sex with her, put your penis inside her---No.
She claims that she told you to stop but you wouldn't stop and you just kept going, she says. Is that true---Yeah.
Hey? Sorry, what did you say---Yes.
She did tell you to stop---(No audible answer)
Did (indistinct)---I don't know.
Don't know. Well, in any - all right. Did you at any time believe in your mind that she was objecting to what you were doing---I don't know.
Can you answer this question? When you were licking her out, was there any objection to(?) her at all---Nuh.
When you first put your penis inside her vagina was there any objection from her at all---No.
And you didn't ejaculate---Beg your pardon?
You didn't come? You------No (ts 184). (emphasis added)
Defence counsel did not ask any further questions in evidence‑in‑chief.
The appellant reiterated in cross‑examination that he had had sex with the complainant on numerous occasions before 20 February 2012. He said they had previously had sex on more than 10 occasions (ts 195) including at the Flag Motor Lodge, the Armadale unit and the Maylands unit.
The cross‑examination about the incident in question was as follows:
Now, you say that [the complainant] asked you to, 'Lick her out'---Yes, she did.
And that meant that she'd asked for oral sex, is that right---Yeah.
And you say that you were happy to perform oral sex on her---Yeah.
Now, it didn't actually happen, did it, Mr Butler---Yes, it did. Hey, you've already heard it before. I'd do it over again. I'm just going to reject it all the fucking time.
Mr Butler, what happened is that you got on top of [the complainant] without anything happening first. That's the truth, isn't it---No.
...
Mr Butler---She asked me to lick her out. So I did. So then after that I had it with her. And I didn't rape her.
You said in your evidence today that [the complainant] didn't say anything while you were having sex with her, or at least you don't remember her saying anything, is that right---Can't remember.
…
You can't remember whether she said anything---No, I can't remember.
You told the police, didn't you, that she said, 'Get off, I could have you for rape'---(No audible answer)
Mr Butler, do you remember saying that to the police---(No audible answer)
Mr Butler, did you hear my question---Nuh.
Did you tell the police [the complainant] said, 'Get off, I could have you for rape'---Can't remember.
Well, you've seen the interview. That part was played this morning, wasn't it? Do you remember seeing it this morning, Mr Butler---(No audible answer)
Mr Butler---Can't remember.
You remember her saying, 'Get off, I could have you for rape', don't you---(No audible answer)
Mr Butler, do you remember her saying------Yes.
You do remember that---But I didn't rape her.
You said to the police------Could you just stop going over and over and over and over again?
DERRICK DCJ: Mr Butler, I've spoken to you ... before about this. Counsel has some questions to ask you. If you answer them then things will move along more quickly. So please just answer his questions. So are you saying now that yes, you remember she told you, 'Get off me, I can have you for rape'? You remember her saying that to you---Yeah.
DERRICK DCJ: Right.
And what did that word mean to you, Mr Butler? What did the word 'rape' mean to you---I didn't rape her.
It's not what I'm asking, Mr Butler. What did that word mean to you---Nothing.
It meant to have sex with someone without their permission, didn't it? That's what you understood---(No audible answer)
Mr Butler---Don't know.
Have you any concept of what that word meant---No, I don't know.
So when you just said to me a moment ago, 'I didn't rape her', what do you think you're denying---Already told you I didn't rape her.
What do you understand that word to mean---(No audible answer)
Mr Butler, what do you------I know.
- - - understand the word 'rape' to mean---No, I don't know.
You understood [the complainant] to be saying you did not have her permission to have sex with her, didn't you---She didn't say that.
You've just said a moment ago that she did, Mr Butler---You're confusing.
When you were having sex with [the complainant] on this night, do you remember her saying, 'Get off, I could have you for rape'---Sort of.
Sort of? What part of that do you remember---Part of it.
Which part---Don't know.
Do you remember her saying, 'I could have you for rape'---Yeah, I know. But I didn't rape her.
When she said that, you didn't stop, did you---(No audible answer)
Did you---Nuh.
You continued until you'd finished, didn't you---Don't know.
Would you accept that's what you told the police, that you continued until you'd finished---(No audible answer)
Mr Butler---I don't know.
Did you ask [the complainant] any questions about what she meant when she said that comment to you---No.
She told you to get off her, didn't she---Don't know.
And you didn't get off her, did you---(No audible answer)
You didn't get off her, Mr Butler, did you---Don't know.
You had sex with her for five minutes or more after she said that, didn't you---Can't remember.
Now, you said this morning that you don't have any idea what 'five minutes' actually means, is that right---That's right.
Is that really true---(No audible answer)
Mr Butler, is it really true that you have no idea what five minutes is---Nuh.
No, it's not really true---I don't know what it means.
...
The truth is that [the complainant] was asleep when you got on top of her that night---Wrong.
And that you had sex with her exactly the way she described it---She was not asleep.
You were well aware---She was awake.
You were well aware she didn't want to have sex with you, weren't you? Weren't you, Mr Butler---Why would she ask to get licked out?
Mr Butler, you know that that doesn't mean you can then do anything you want, don't you---Don't know.
That is what, 'Get off, I could have you for rape' meant, wasn't it, in your mind---Don't know (ts 197 ‑ 200, 203). (emphasis added)

The trial judge's ruling on s 24 of the Code

The trial judge rejected a submission by defence counsel that he should direct the jury in his summing up on the defence under s 24 of the Code. His Honour's reasons were, relevantly, as follows:
In my view on [the appellant's] version of events, it's clear on his version that the complainant consented to the initial act of penetration so there's therefore, in my view, no room on his version for some mistaken belief reasonable or otherwise to have arisen at the time of the initial penetration.
Further on his version, the complainant during the sexual intercourse told him ... to stop. He at no stage during either the interview or ... his evidence said he had a belief that despite her saying this, the complainant was consenting to the continuation of the penetration. Even if he had said that, there would, in my view, be no basis on the evidence for saying that that belief is reasonable.
It's submitted on [the appellant's] behalf that what he said during the interview to the effect that the complainant's words were, 'Get off, I could have you for rape' is sufficient to give rise to the possibility that [the appellant] was acting under an honest and reasonable but mistaken belief. I do not accept that submission. It seems to me quite clear. The bottom line is that the complainant, even on [the appellant's] version, told him to get off. In other words, stop doing what he was doing. I don't see in those circumstances that if the complainant uttered the words, 'I could have you for rape' that that could somehow give rise to some honest and reasonable but mistaken belief that the complainant was consenting to him continuing to have sexual intercourse with her.
It's also submitted on [the appellant's] behalf that the fact that on [the appellant's] version he'd had consensual sexual intercourse with the complainant on a number of occasions over the previous years gives rise for a basis for saying that he could have honestly and reasonably but mistakenly believed that she was consenting to sexual intercourse on this occasion. In light of the evidence to which I've referred … where even on [the appellant's] version she tells him to get off her, I do not accept that that evidence of the past relationship provides a basis for either an honest belief or provides a basis that the jury might be left in a reasonable doubt as to whether [the appellant] had a belief that the complainant was consenting or that that belief was reasonable.
Therefore, in my view, [the appellant] has not discharged the evidentiary burden of honest and reasonable but mistaken belief. There is no evidence, in my view, which taken at its highest in favour of [the appellant] could lead a reasonable jury properly instructed to have a reasonable doubt as to whether [the appellant] was acting under an honest and reasonable but mistaken belief as to whether the complainant consented to the initial act of penetration or the continuation of that penetration. I therefore do not intend to direct the jury on section 24 of the Criminal Code (ts 210 ‑ 212). (emphasis added)

The jury's questions

At 11.01 am on 19 December 2012, the trial judge completed his summing up and the jury retired to consider its verdict.
At 2.35 pm on 19 December 2012, his Honour received a note from the jury with six questions. Questions four and five read:
Four, if [the appellant] did not understand that consent had been withdrawn then can we convict him of sexual penetration without consent? Five, is [the appellant] being charged with sex without consent or continuing sex once consent was withdrawn? (ts 258)
After the trial judge discussed the questions with the prosecutor and defence counsel in the absence of the jury, the jury returned at 2.49 pm and his Honour answered question four, as follows:
Question 4: If [the appellant] did not understand that consent had been withdrawn, then can we convict him of sexual penetration without consent?
Well, members of the jury, the position is that there is no evidence before you that [the appellant] did not or may not have understood that consent had been withdrawn. When he was asked by his counsel: Did you at any time believe in your mind that she was objecting to what you were doing? [The appellant] responded: I don't know.
The whole of [the appellant's] case has been presented on the basis that the sexual activity was consensual from whoa to go - that was not a very nice way of putting it, but from the moment of initial penetration to the end of the act. His case is that it was consensual.
There's no evidence before you that he did not understand that in fact consent had been withdrawn.
So if you are satisfied beyond reasonable doubt contrary to the case that is advanced on [the appellant's] behalf that [the complainant] withdrew her free and voluntary consent to the sexual penetration and that [the appellant] continued to sexually penetrate her after she withdrew her free and voluntary consent, you will find [the appellant] guilty.
As I told you this morning, the defence case is that any comment that [the complainant] made to the effect of 'Get off, I could have you for rape', isn't a reflection of the fact that she was withdrawing her consent. The defence case is the consent was not withdrawn (ts 268-269).
The trial judge then answered question five by redirecting the jury on the State's primary case and its alternative case (ts 269 ‑ 271).
At 3.04 pm the jury retired again to consider its verdict.
At 4.17 pm the jury sent his Honour another note with the following question, being question six:
Is [the appellant] competent to stand trial? (ts 273)
After the trial judge discussed the question with the prosecutor and defence counsel in the absence of the jury, the jury returned at 4.24 pm and his Honour gave this answer:
The issue of whether [the appellant] is competent to stand trial has not been raised by or on behalf of [the appellant]. It is not an issue that you should be concerning yourself with. You must proceed with your deliberations on the basis that he is competent to stand trial (ts 278).
At 4.25 pm the jury retired again to consider its verdict and at 4.29 pm the jury returned with a unanimous verdict of guilty.

The significance of the jury's questions

At trial, the appellant was represented by defence counsel with substantial criminal law experience. At no stage was it suggested on behalf of the appellant that he was not fit to plead. Also, at no stage was it suggested on behalf of the appellant that his video recorded interview with the police was involuntary or unfair or that it should for any reason be excluded by the trial judge in the exercise of his discretion.
It was, of course, for his Honour to determine whether, on the evidence adduced at trial, the defence under s 24 should, as a matter of law, be left to the jury. The jury's questions are irrelevant in determining whether his Honour made an error of law, as alleged.
However, in the unusual circumstances of the present case, where the appellant had an intellectual impairment, question four from the jury is of some significance in deciding whether, if his Honour made the alleged error of law, no substantial miscarriage of justice has occurred. The jury, having heard and seen all of the witnesses (in particular, the appellant) give evidence, and without any instruction or suggestion from the trial judge, the prosecutor or defence counsel, were plainly concerned that the appellant may not have understood that the complainant had withdrawn her consent to him continuing to have sexual intercourse with her.

The sentencing hearing

The information before the trial judge at the sentencing hearing included a report dated 20 January 2013 from a clinical and forensic psychologist, Ms Jane Sampson, and a report dated 29 January 2013 from a consultant forensic psychiatrist, Dr Peter Wynn Owen.
Ms Sampson administered psychological testing. She said the appellant's performance on the test placed him in the 'extremely low' range of intellectual capacity. Ms Sampson noted the appellant continued strongly to deny the offending. He asserted it was 'all rubbish' and the complainant had consented, first asking him to perform oral sex on her. Ms Sampson also noted the appellant was very angry with the complainant. As to mental disorder, Ms Sampson expressed these views:
[I]t was not possible to ascertain if [the appellant] has a deviant sexual arousal pattern due to his defensiveness, but there is no prior concern in relation to this and it seems unlikely. He does not appear to be personality disordered and has no reported major mental health problems, although he is in receipt of anti‑depressant medication. He does not have any substance abuse problems. There is no articulation of any suicidal ideation, but he was noted to threaten revenge to the victim, although this may just be for his own empowerment and how he expresses his current anger at his predicament.

Dr Wynn Owen did not carry out any psychological testing. He said that, although the appellant presented as speaking slowly and there were reports he was semi‑literate, the appellant's life achievements and presentation suggested intelligence within the normal range. Dr Wynn Owen did not believe the appellant's intellectual disability led to the offending or limited his capacity to understand the circumstances and context in which the offending occurred.
The trial judge made numerous findings and observations in his sentencing remarks. It must be emphasised that the facts implicit in a verdict of guilty after a trial before a judge and jury cannot be controverted during the sentencing process. The trial judge must impose sentence according to those facts. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA). In the present case, his Honour said:
(a)The appellant bought the complainant various items, including jewellery, and gave her significant amounts of money. The gifts of jewellery included an engagement ring. The complainant took the ring but never had any intention of marrying the appellant (ts 292).
(b)The complainant was not 'a particularly convincing witness' (ts 293).
(c)The appellant did, on a limited number of occasions, engage in sexual activity with the complainant during the period they lived at the caravan park and in the Armadale unit (ts 293).
(d)His Honour was not satisfied that the appellant and the complainant engaged in sexual activity after they resumed their friendship and before the incident in question (ts 293).
(e)At all material times, the appellant was attracted to the complainant. On Valentine's Day (14 February) 2012 he bought her a necklace. His Honour was not satisfied that the appellant and the complainant had sex on Valentine's Day 2012.
(f)Overall, his Honour did not find the complainant to be an impressive or convincing witness. She was hesitant and evasive in answering a number of questions in cross‑examination (ts 296). Her evidence to the effect that the appellant did not give her money and did not buy her gifts was untruthful (ts 296). Her evidence about an allegation of sexual assault that she made to the police in 2006 was untruthful (ts 297). There were material inconsistencies between the complainant's witness statement and her evidence at trial (ts 297).
(g)His Honour was not satisfied beyond reasonable doubt that the complainant's evidence about the incident in question was, in all respects, honest and accurate (ts 298).
(h)His Honour would sentence the appellant on a factual basis that was 'substantially, albeit not entirely, consistent with the version of events that [he] provided to the police and during the giving of [his] evidence' (ts 298).
(i)The complainant invited the appellant to perform oral sex on her; the appellant did perform oral sex on her with her consent; the appellant incorrectly perceived the complainant's consent to oral sex as an invitation to have sexual intercourse with her; the complainant did not consent to the appellant penetrating her vagina with his penis; the complainant attempted to prevent the appellant penetrating her vagina but he overpowered her and, at least for some time, restrained her by holding her arms; while the appellant was having intercourse with the complainant, she 'made clear to [him] that she was not consenting to what was occurring by telling [him] to get off and that she would have [him] for rape'; the appellant ignored these statements and continued to have intercourse with the complainant for some time until he ejaculated in or on her vaginal area (ts 298).
(j)His Honour did not accept that the complainant had deliberately lured the appellant into having sexual intercourse with her with the intention of withdrawing her consent once the intercourse had begun so she could later claim she had been sexually assaulted and seek compensation (ts 298 ‑ 299).
The trial judge also made these findings:
Now, I have no doubt that you formed the completely unreasonable belief that the fact that you had [at the complainant's] invitation, performed oral sex on her, entitled you to have sexual intercourse with her, regardless of her expressed objection to you doing so and regardless of the fact that you knew that she was not consenting. As you said to the police when you were interviewed, you did not think that you raped her, and I quote, 'Because why would a woman say lick her out.' (ts 299 ‑ 300). (emphasis added)
His Honour noted, in relation to the appellant's intellectual capacity, that Ms Sampson and Dr Wynn Owen had expressed 'starkly contrasting opinions' (ts 302). His Honour said:
I've had the advantage of observing you when you were interviewed by the police and when you gave your evidence. Having observed and listened to you, and taking into account the results of the psychometric testing carried out by the psychologist, I have no doubt that you do have a low intellectual capacity, certainly well below the average. It follows that I do not accept the psychiatrist's opinion in this regard.
The fact that you do have low intellectual capacity is not of itself a mitigatory factor. The issue is whether your low intelligence impacted on your ability to appreciate the wrongfulness of your conduct or to control your actions or emotions, or to make reasoned judgment.
...
On the basis of my observations of you during the trial, the evidence that you gave, and the opinion expressed by the psychologist, I am satisfied that your low intellectual capacity did contribute to you forming the unreasonable belief that the fact that you had in the past engaged in sexual activity with [the complainant] and the fact that you had immediately before the offence, and at [the complainant's] invitation, performed oral sex on her entitled you to have sexual intercourse with her, regardless of her expressed objection to you doing so, and regardless of the fact that you knew that she was not consenting to you having sexual intercourse with her (ts 303 ‑ 304). (emphasis added)

The significance of the trial judge's sentencing remarks

The trial judge's sentencing remarks are irrelevant in determining whether his Honour made an error of law, as alleged.
However, in the unusual circumstances of the present case, where the appellant had an intellectual impairment, the trial judge's sentencing remarks are of some significance:
(a)in revealing his Honour's view, having heard and seen the appellant give evidence, as to the extent of his intellectual disability; and
(b)if his Honour made the alleged error of law, in deciding whether no substantial miscarriage of justice has occurred.

Section 24 of the Code: applicable legal principles

Section 24 of the Code provides, relevantly:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
A defence under s 24, in the context of an offence alleging sexual penetration or an indecent act, without consent, will not arise for determination unless:
(a)there was, in fact, no consent; and
(b)there is some evidence, fit for the tribunal of fact's consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the complainant consented to the sexual penetration or indecent act.
See Narkle v The State of Western Australia [2011] WASCA 160 [39] (Buss JA, McLure P & Hall J agreeing); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [7] (Buss JA) and the cases there cited.
In Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87, McLure JA (Roberts‑Smith & Buss JJA agreeing) explained the elements of the defence under s 24. As to the element that the accused's belief must be reasonable (which she described as a 'mixed element'), her Honour said:
The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself [43].
Also see her Honour's reasons at [44] and [46].

When should the defence under s 24 of the Code be left to the jury?

If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as with s 24 of the Code) the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, had been negatived? See Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ).
So, a trial judge should leave the defence under s 24 to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived the defence.

The merits of the ground of appeal

The trial judge rejected defence counsel's submission that the jury should be directed on the defence under s 24 of the Code because, in his Honour's view, the appellant had not satisfied the evidential onus. His Honour decided that there was no basis in the evidence for the existence of an honest but mistaken belief by the appellant that the complainant was consenting to him having or continuing to have intercourse and, in any event, there was no basis in the evidence for a reasonable doubt as to whether any such honest but mistaken belief was reasonable (ts 209 ‑ 212).
His Honour's sentencing remarks reveal that, having observed and listened to the appellant when he was interviewed by the police and when he gave sworn evidence at trial, and after taking into account the psychometric testing carried out by Ms Sampson, his Honour was of the view that the appellant had a low intellectual capacity; indeed, an intellectual capacity 'well below the average' (ts 303). This accords with my impression of the appellant's intellectual capacity after watching and listening to the visual/audio recording of his interview with the police.
The trial judge did not, however, in his reasons for rejecting defence counsel's submissions on s 24, refer to the appellant's significant intellectual disability.
His Honour decided not to leave s 24 to the jury because:
(a)as to the State's primary case, it was 'clear', on the appellant's version of events, that 'the complainant consented to the initial act of penetration' so there was 'no room on his version for some mistaken belief, reasonable or otherwise, to have arisen at the time of the initial penetration' (ts 210 ‑ 211);
(b)as to the State's alternative case, 'on [the appellant's] version, the complainant during the sexual intercourse told him … to stop'; 'at no stage during either the interview or … his evidence' did the appellant say that 'he had a belief that despite her saying this, the complainant was consenting to the continuation of the penetration'; and 'even if he had said that, there would … be no basis on the evidence for saying that that belief [was] reasonable' (ts 211);
(c)as to the State's alternative case, if the complainant said, 'Get off, I could have you for rape', as asserted by the appellant, those words were 'quite clear', and the complainant was telling the appellant to 'stop doing what he was doing' (ts 211).
In my opinion, the trial judge made material errors in deciding not to direct the jury on the defence under s 24.
First, as to the defence generally, the appellant did not assert, either in his video recorded interview with the police or in his sworn evidence at trial, that the complainant had expressly consented to him penetrating her vagina with his penis. His Honour was in error in finding that it was 'clear', on the appellant's version of events, that 'the complainant consented to the initial act of penetration' (ts 210).
Secondly, as to the defence generally, his Honour was in error in stating that 'on [the appellant's] version, the complainant during the sexual intercourse told him … to stop'. That was the complainant's version. The appellant's version was, relevantly, that during the sexual intercourse the complainant said, 'Get off, I could have you for rape'.
Thirdly, as to the requirement that the accused have an honest belief, this requirement is wholly subjective. The existence of any such belief may, in a particular case, be influenced by the particular accused's personal attributes and characteristics including an intellectual disability. Also, the existence of any such belief may, in a particular case, be inferred from the accused's evidence as to the relevant facts and circumstances without the accused having expressly said that he or she had an honest belief as to consent. In the circumstances of the present case, and on a fair reading of his Honour's reasons as a whole, I consider that his Honour did not take into account, in applying the wholly subjective test, the appellant's significant intellectual disability. Also, his Honour did not consider whether, on the appellant's version of events, it was open to infer, as a reasonable possibility, the existence of an honest belief either in relation to the initial act of penetration or upon and after the complainant said, 'Get off, I could have you for rape'.
Fourthly, as to the element of the defence that the accused's honest but mistaken belief be reasonable, this element is not wholly objective. Reasonableness in this context is not to be determined by reference to the hypothetical ordinary person in the community. The applicable standard combines subjective and objective aspects. The reasonableness of the accused's honest but mistaken belief is to be determined by reference to those personal attributes and characteristics of the particular accused which are capable of affecting his or her understanding of the relevant circumstances. See Aubertin [43]. These personal attributes and circumstances include an intellectual disability. The notion of an intellectual disability includes an intellectual capacity that is materially less than the intellectual capacity of the hypothetical ordinary person in the community. In the circumstances of the present case, and on a fair reading of his Honour's reasons as a whole, I am satisfied that his Honour applied a wholly objective test to the element that the accused's honest but mistaken belief be reasonable. His Honour did not take into account, in applying this mixed element, the appellant's significant intellectual disability.
The appellant's version of events in relation to the State's primary case, as set out in his video recorded interview with the police and his sworn evidence at trial, was that:
(a)he and the complainant were in a relationship 'like boyfriend/girlfriend';
(b)he had bought the complainant an engagement ring which she had accepted;
(c)he and the complainant had had consensual sex on numerous occasions before the alleged offence including on Valentine's Day (14 February) 2012, being six days before the alleged offence, when he gave her a necklace;
(d)on the evening in question the complainant was not asleep;
(e)he performed oral sex on the complainant at her request;
(f)the complainant appeared to be enjoying the oral sex;
(g)he then penetrated the complainant's vagina with his penis and commenced having intercourse with her; and
(h)the complainant did not object to the initial penetration or the commencement of the intercourse.
In my opinion, on the appellant's version of events in relation to the State's primary case, and in the context of his intellectual impairment, the appellant satisfied the evidential onus. At the close of the defence case, there was evidence from the appellant which, taken at its highest in his favour, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the State had negatived the defence.
The ground of appeal has been made out in relation to the State's primary case.
The question remains whether no substantial miscarriage of justice has occurred despite the trial judge's failure to leave the defence under s 24 in relation to the State's primary case. As I have mentioned, the State conceded that if the ground of appeal was made out then the 'proviso' should not be applied. A consideration of the correctness of this concession requires an examination of s 24 in the context of the State's alternative case.
During the video recorded interview with the police, the appellant said in relation to the State's alternative case:
(a)While he was having intercourse with the complainant she said, 'Get off. I could have you for rape'.
(b)He did not get off.
(c)He continued having intercourse with the complainant for 'round about five, 10 minutes'.
(d)He got off the complainant when he was 'finished'.
(e)A 'rape' charge would not 'stick'.
(f)The complainant did not say anything else after she said, 'Get off, I could have you for rape'.
On my assessment of the visual/audio recording of the interview, the appellant was very angry towards the complainant and was astounded by her allegation that he had 'raped' her.
During his sworn evidence at trial, the appellant said in relation to the State's alternative case:
(a)He did not know, at any time while he was having intercourse with the complainant, whether he believed in his mind that she was objecting to what he was doing.
(b)He remembered the complainant saying, 'Get off, I could have you for rape'.
(c)When the complainant said, 'Get off, I could have you for rape', he did not stop. He kept going.
(d)He did not know the meaning of the word 'rape'.
(e)He did not know what the words, 'Get off, I could have you for rape' meant in his mind.
(f)He did not have any idea what 'five minutes' actually means.
(g)He had not 'raped' the complainant.
I am not satisfied that no substantial miscarriage of justice has occurred.
First, the trial judge sentenced the appellant on the basis of the State's primary case; that is, the appellant had penetrated the complainant's vagina with his penis without her consent. However, I have held that, contrary to his Honour's ruling, the appellant satisfied the evidential onus, for the purposes of the defence under s 24, in relation to the State's primary case, and his Honour should have left the defence to the jury.
Secondly, I am not persuaded, on my review of the trial record, that the appellant did not satisfy the evidential onus, for the purposes of the defence under s 24, in relation to the State's alternative case. A decision as to whether the appellant, on the state of the evidence at the close of the defence case, had discharged this onus requires an evaluation of the appellant's sworn evidence at trial (in addition, of course, to his video recorded interview with the police) in the context of his significant intellectual disability. In the unusual circumstances of the present case, I am not able adequately to perform this task merely by reading the transcript and without the trial judge's advantage of hearing and seeing the appellant give his sworn evidence.

Thirdly, it is not possible to determine the basis on which the jury returned its verdict of guilty; that is, whether it convicted the appellant on the basis of the State's primary case or its alternative case. Question four from the jury indicates it is reasonably possible that the jury may have convicted in reliance on the alternative case.
I would therefore allow the appeal and set aside the judgment of conviction.

Should this court order a new trial or enter a judgment of acquittal?

Section 30(5) of the Criminal Appeals Act provides, relevantly, that if this court allows an appeal against conviction, it must set aside the conviction and must, relevantly, order a new trial or enter a judgment of acquittal. Whether this court, in a particular case, orders a new trial or enters a judgment of acquittal is discretionary.
In Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character (630). Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case (630). Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused' (630).
Recently, in Schmidt v The State of Western Australia [2013] WASCA 201 [278] ‑ [283], I reviewed other decisions of the High Court in relation to the exercise of the discretion to order a new trial. It is unnecessary to reproduce the review.
The matters that may be taken into account at the second stage referred to in Fowler include the strength of the State's case against the accused. See Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 [192] ‑ [193] (Steytler P, Roberts‑Smith & McLure JJA agreeing).
In my opinion, this court should, in the exercise of its discretion, enter a judgment of acquittal. Although the public interest in the due prosecution and conviction of offenders and the serious nature of the offence alleged against the appellant would ordinarily result in this court ordering a new trial, those public interest considerations are outweighed, in the unusual circumstances of the present case, by other relevant factors, as follows.
First, it is apparent from the trial judge's sentencing remarks that the complainant was, in numerous respects, an unsatisfactory witness. Some of her evidence was untruthful. Although there is no ground of appeal which asserts that the verdict of guilty on which the appellant's conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, the State does not, in my opinion, have a strong case against the appellant.
Secondly, his Honour imposed a sentence of 2 years 8 months' immediate imprisonment with eligibility for parole. The sentence was backdated to 19 November 2012. When this court delivers its decision in the appeal the appellant will have been in custody for about 11 months. This is a significant proportion of the non‑parole period and the sentence as a whole.
Thirdly, the sentence of 2 years 8 months' immediate imprisonment was imposed on the basis that the State had made out its primary case. If a new trial were to be ordered, and the appellant were to be convicted again, it is reasonably possible that the jury, properly instructed, would arrive at its verdict by accepting the State's alternative case. If the judge who presided over the new trial were to sentence the appellant on that basis, there would be strong prospects of contending successfully that a sentence of 2 years 8 months' immediate imprisonment would be manifestly excessive.

Conclusion

I would make the following orders:
(a)appeal allowed;
(b)judgment of conviction set aside; and
(c)judgment of acquittal entered.
HALL J: I agree with Buss JA that this appeal against conviction should be allowed and that the conviction should be set aside and a judgment of acquittal entered. I also agree generally with Buss JA's reasons, however I wish to add some comments of my own.
If it was open on the evidence to conclude that the appellant had an honest and reasonable but mistaken belief that the complainant consented to sexual intercourse then the jury should have been directed accordingly. The critical question for the trial judge was whether there was a version of the facts available on the evidence that left open the possibility of a mistaken belief. In this regard, it is necessary to view the evidence taken at its highest in favour of the appellant: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434.
The trial judge concluded that it was not open to leave mistake to the jury because the appellant's evidence was that the complainant had given express consent. In fact the appellant only claimed that there was express consent to oral sex. This was in the form of an invitation by the complainant to engage in that specific act. The appellant did not claim that express consent had been given for intercourse. Rather this was an assumption that he made in the circumstances.
It was open to the jury to find that the complainant had consented to oral sex but not to intercourse. This possibility was not excluded by the appellant's evidence. Furthermore, the possibility of a mistaken belief as to consent to intercourse was not excluded by the appellant's evidence. Whether such a belief was reasonable needed to be seen in the context of the history of the relationship and the subjective circumstances of the appellant.
The other factor which persuaded the trial judge not to leave mistake to the jury was that the appellant had agreed that the complainant had said, 'Get off, I could have you for rape'. His Honour's conclusion was that no reasonable belief as to consent could be maintained in the face of

such a statement. This conclusion contains two implicit assumptions. First, that when the words were said the appellant ignored them and continued to engage in sexual intercourse. Secondly, that the statement was one that was incapable of being misunderstood by the appellant.

The evidence of the appellant in regards to when the words 'Get off, I could have you for rape' were said was vague and confused. In particular, whether he continued to sexually penetrate the complainant after those words were said is unclear. This is reflected in the fact that during the interview the police returned to this issue several times. In that interview the appellant appears, finally, to agree that intercourse did continue. But given his angry mood at that time and limited intellectual ability, any concurrence should be viewed with particular caution. His evidence at trial was equally vague. He said he could not remember telling the police what the complainant had said but could remember her saying the words. When pressed he said he agreed that he did not stop but when asked immediately after whether he continued until he had finished he said he did not know. His ability to appreciate the significance of relating the act of intercourse to when the words were stated is far from apparent. In the circumstances, the possibility that intercourse did not continue after the words were spoken could not be discounted.
Even if intercourse did continue the test for whether it was reasonable to maintain a mistaken belief that the complainant was consenting was not wholly objective. Whilst the words referred to by the appellant might be clear to an ordinary person what needed to be taken into account were the personal attributes and characteristics of the appellant: Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87. It was necessary to consider the appellant's limited intellectual ability and what he said about his understanding of the nature of the relationship. Having regard to those factors the possibility that the appellant had not understood the significance of the words could not be discounted.
Whilst they always need to be considered, in many cases the subjective factors relevant in assessing whether a belief was reasonably held may not be of critical importance. In this case, however, they were. Assumptions as to what a person of ordinary intelligence and experience may have understood or believed were not likely to be helpful here. Indeed, they were likely to be misleading. The question was not whether a reasonable person could have held a mistaken belief as to consent but whether the appellant could have honestly and reasonably held such a belief.
In the particular circumstances of this case the possibility that the appellant had a mistaken belief that the complainant had consented to sexual intercourse was open on the evidence. It should have been left to the jury and the failure to do so was an error. It was clearly a significant error in that it deprived the appellant of the opportunity of being acquitted of the charge. In these circumstances the appeal must be allowed and the conviction set aside.
The usual outcome in a case of this nature would be for a retrial to be ordered. However, for the reasons stated by Buss JA, I agree that the appropriate course is to enter judgment of acquittal.