C P v P M
[2009] VSC 232
•16 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5497 of 2008
| CP | Appellant |
| v | |
| PM | Respondent |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 June 2009 | |
DATE OF JUDGMENT: | 16 June 2009 | |
CASE MAY BE CITED AS: | CP v PM | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 232 | |
JUDGMENT APPEALED FROM: | Children’s Court (McIndoe M, 3 March 2008) | |
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APPEAL FROM CHILDREN’S COURT ON A QUESTION OF LAW – Rape – Mens rea – No error of law – Crimes Act 1958, s 38 – Children, Youth and Families Act 2005, s 427.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P.G. Nash QC with Ms D.L. Mitchell | Ann Valos Criminal Law |
| For the Respondent | Ms S.M.K. Borg | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an appeal pursuant to s 427 of the Children, Youth and Families Act 2005 on a question of law, from a decision of the Children’s Court[1] constituted by McIndoe M. His Honour found the following charge proved against the appellant:
“The [appellant] at Werribee on 16 May 2007 did rape [SG, the complainant] by intentionally sexually penetrating her vagina with his penis without her consent while being aware that she was not consenting or might not be consenting.”
[1]Made on 3 March 2008
By his amended notice of appeal[2], the appellant relies upon three grounds of appeal as follows:
[2]Dated 10 June 2009.
“1.It was not open to the learned Magistrate, on the findings of fact displayed in his Honour’s reasons, to be satisfied beyond reasonable doubt that the appellant possessed the necessary mens rea for the offence of rape.
2.The learned Magistrate erred in law in applying an objective test for the purpose of determining whether the appellant was aware that the complainant might not have been consenting.
3.The learned Magistrate erred in concluding that proof of ‘circumstances by which [the appellant] must be taken to have been put on notice that [the complainant] might not have been consenting’ established beyond reasonable doubt that the appellant was aware that the complainant might not have been consenting.”
Originally, the appellant also appealed in relation to the disposition of the proceeding, making complaint about a failure by the magistrate “to impose a sentence available to him under s 360 of the Children, Youth and Families Act 2005.” However, this ground of appeal was abandoned at the commencement of the hearing.
For the reasons given below the appeal will be dismissed.
Background facts
The background facts of this matter are set out in the summary of the complainant’s evidence provided in paragraphs 9 to 12 of the affidavit in support of appeal sworn by Ms Mitchell on 11 April 2008. Paragraphs 9 to 12 provide:
“9.[SG] gave evidence that she met [CP] at a party. [SG] stayed at [CP’s] house on the night of the party. The two subsequently entered into a relationship. The relationship lasted about 2 months. During this period [SG] stayed at [CP’s] house frequently. The two engaged in different types of sex on a regular basis.
10.[SG] said that she told [CP] the relationship was over on 22 April 2007 because [CP] was too clingy. They continued to have contact by phone and internet (msn messaging).
11.On 16 May 2007 [SG] told [CP] that she was bored. [CP] suggested that [SG] come over to his house which she did after saying she would think about it. [SG[ said that she watched TV in the lounge on her arrival then went to [CP’s] room to watch a movie. [SG] said that she went to get something to eat from the kitchen and then went back to [CP’s] room.
12.At some stage [SG] took off her pants and put on a pair of pyjama pants that she had left at [CP’s]. She then got into bed with [CP] and started kissing him. [SG] says that [CP] started fingering her and then went down on her.”
Thereafter full sexual intercourse took place. While everything that preceded full sexual intercourse was consented to, the issues at trial were whether the complainant consented to full sexual intercourse and the question of mens rea.
The relevant statutory provisions
As at 16 May 2007, s 38 of the Crimes Act 1958 relevantly provided:
“38. Rape
(1) A person must not commit rape.
Penalty: Level 2 imprisonment (25 years maximum).
(2) A person commits rape if –
(a)he or she intentionally sexually penetrates another person without that person’s consent while being aware that the person is not consenting or might not be consenting; or
(b) after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
(3) …
(4) …”[3].
[3]The amendments made to s 38(2)(a) by s 5 of the Crimes Amendment (Rape) Act 2007 have no application in this case because the offence the appellant was alleged to have committed was alleged to have been committed prior to the commencement of s 5 (see s 609(2) of the Crimes Act).
The affidavit in support of appeal sworn by Ms Mitchell on 11 April 2008 discloses that in the course of submissions made to the magistrate the appellant relied upon s 37(1)(c) of the Crimes Act and the prosecutor[4] relied upon s 37(1)(a) and (b)[5]. For reasons which will become apparent, it is not necessary to set out these provisions[6].
[4]Not counsel who appeared for the respondent in this appeal.
[5]See paras 32 and 34 of the affidavit of Ms Mitchell sworn 11 April 2008.
[6]Further, and in any event, the provisions relied upon were substantially amended by s 3 of the Crimes Amendment (Rape) Act 2007 with the new s 37 (not that referred to below) applying to the appellant’s trial because that trial commenced on or after the commencement of s 3 of the 2007 Act (see s 609(1) of the Crimes Act). However, I should note for the sake of completeness that the old s 37(1)(a) – (c) was substantially re‑enacted in ss 37AAA(d) and (e) and 37AA(b). These provisions had application at the time of trial (see s 609(1) of the Crimes Act).
The record of interview
A record of interview was conducted with the appellant on 4 June 2007. The record of interview was tendered before the magistrate[7]. In the record of interview the appellant stated that he was 16 years of age and the complainant was 17 years of age. He was asked and answered the following questions:
[7]See para 23 of the affidavit in support of appeal sworn by Ms Mitchell on 11 April 2008.
“Q 112:
So you put your penis into her vagina?
A:
Yeah.
Q 113:
And what was she saying?
A:
She said – she did say, ‘No’, but like very quietly.
Q 114:
You heard her say that?
A:
Yeah.
…
Q 116:
So are you saying you’re having sex with her ----?
A:
Yeah.
Q 117:
And after two or three minutes she says, ‘No’?
A:
Yeah, I think roughly about there.
Q 118:
Alright. What did you do when you heard her say that?
A:
I sort of stopped.
Q 119:
Yep.
A:
And then keep going.
Q 120:
Alright. Did you hear her say anything else to you?
A:
I can’t remember.
Q 121:
Do you remember her saying, ‘No, I don’t want to?’ And ‘Stop’.
A:
No.
Q 122:
You didn’t hear those words?
A:
I can’t really remember much.
Q 123:
So you remember her saying, ‘No’ once?
A:
Yeah.
Q 124:
Did she say it a few more times?
A:
I think so.
Q 125:
Right. And the other times that you heard her saying, ‘No’, what where you doing?
A:
I’d stopped and then I – yeah, just kept going, I guess.
Q 125:
You kept on having intercourse with her?
A:
Yeah. You could say that.
…
Q 183:
Alright. And what do you mean by rape? What do you think rape means?
A:
Doing it without her consent.
Q 184:
Alright. Is that what you think you’ve done?
A:
Yeah.
Q 185:
Okay. So why isn’t her – at her consent? When did you know she wasn’t consenting to having sex?
A:
Well, when she said, ‘No,’ very softly. But like, she didn’t push me off or anything.
Q 186:
But you agree she said, ‘No’ a few times?
A:
Yeah, I only – I can only remember her saying it the once.
Q 187:
Alright. And you continued having sex with her?
A:
Yeah.
Q 188:
So you agree that that’s against her wishes?
A:
Yeah.
…
Q 197:
Alright. And this is the first time she’s told you to stop?
A:
Yeah.”
The complainant’s evidence
The complainant gave evidence of consensual sexual activity until a point where she said that the appellant “forced himself” on her[8]. The complainant said that she told the appellant to stop and to get off. However, “he kept going”[9] and “he kept having sex with me after I’d said I didn’t want to”[10]. While a large part of the transcript below is inaudible, it would appear that at some time prior to the conduct the subject of the charge the complainant said that she did not want to engage in sexual intercourse[11].
[8]T13 of the transcript below.
[9]T15 of the transcript below.
[10]T16 of the transcript below.
[11]See T12 and T87-88 of the transcript below.
The appellant’s evidence
The appellant gave evidence which was different from the answers he gave in his record of interview. While he admitted that the complainant said (before she came over to the appellant’s house) that she did not want to have sexual intercourse, he said “But like she didn’t stop me”[12]. His explanation for his answers in the record of interview (which was conducted in the presence of his aunt) was that he was scared “like my hands were shaking and everything”[13]. When his answer to question 113 was put to him (that is, the complainant said “No” – but very quietly) he said: I’m pretty sure that she didn’t, but if she did she said it really quietly.
[12]T88 of the transcript below.
[13]T90 of the transcript below.
When he was asked about his answer to question 197 (that is, this was the first time SG had told him to stop) he said: “Well she didn’t really tell me to stop”.
The magistrate’s reasons
The magistrate found the charge of rape proved. His Honour gave oral reasons at the conclusion of submissions made by the parties. His reasons were:
“I certainly accept as submitted by Ms Mitchell that it is important here to distinguish between the evidence relating to the defendant’s state of mind before and during the sexual activity and the evidence relating to this state of mind after that. And of course it is his state of mind immediately prior to and during the sexual activity that the evidence of which has to be assessed. I must say that I found the complainant a most persuasive witness, and essentially I accept her account of what occurred on this occasion. And I think there is no doubt the evidence [inaudible] by the prosecution establishes as fact that there was absence of consent. The greater difficulty is in assessing the strength of the evidence in support of the allegation that the defendant was aware and ought to have been taken to have been aware of the absence of consent. The difficulty which the defendant faces here is in the provision that entitles the prosecution to rely on evidence establishing that he was aware that the complainant might not have been consenting. I don’t think that evidence is capable of establishing as fact his awareness that she was not consenting, but I think it certainly reaches a level to prove circumstances by which he must be taken to have been put on notice that she might not have been consenting. For that reason I think the charge relative to penetrative sex is made out and I do find it proven, but the question of disposition of course is another matter entirely. I would prefer to deal with that tomorrow.”
Having found the charge proved, on the following day (4 March 2008) the magistrate discharged the appellant. There is no transcript of the magistrate’s reasons in evidence, and I was told during the course of the hearing that none existed. The court register records the order of the Court as:
“Defendant discharged.
Other reasons:
A technical rape more an adolescent error than an offence of mens rea.”
The grounds of appeal
In essence the appellant’s complaint is that the magistrate applied an objective test rather than a subject test when looking at the issue of mens rea. This is said to be borne out by the reasons of the magistrate and the recording in the court’s register. As an additional argument, the appellant contended that on the findings of fact of the magistrate, it was not open for the magistrate to be satisfied beyond reasonable doubt that the appellant possessed the necessary mens rea. It was further contended that proof of “circumstances by which the appellant must be taken to have been put on notice that the complainant might not be consenting” was not sufficient to establish beyond reasonable doubt that the appellant was aware that the complainant might not have been consenting.
Did the magistrate apply an objective test?
The appellant contended that the use of the words “ought to have been taken to have been aware of the absence of consent” and the words “to prove circumstances by which he must be taken to have been put on notice” in the magistrate’s reasons suggest an objective test was applied when his Honour determined the issue of mens rea. Reliance was then placed upon what was said by Eames JA in R v Zilm[14]:
“In my opinion, the direction about treating reasonableness as merely a ‘guide’ did not sufficiently emphasise that, even if the jury concluded that the applicant had held an unreasonable belief that the complainant was consenting to his sexual acts, he would be entitled to acquittal if the Crown failed to disprove that his belief, although unreasonable, was genuinely held at the time. That was the additional direction suggested by Callaway JA in the passage highlighted by me in the extract from Munday, cited above. The fact that particular care was required in directing on this topic is emphasised by the questions asked by the jury during their deliberations.”[15]
[14](2006) 14 VR 11 at 29 [76].
[15]Reliance was also placed on R v Costa (unreported Court of Appeal delivered 2 April 1006) and R v Lucin (unreported Appeal Division delivered 25 March 1994).
The difficulty for the appellant’s argument that his Honour applied an objective test is that his Honour correctly set outs the test in the terms of the language of the statute in the sentence in his Honour’s reasons which refers to “The provision that entitles the prosecution to rely on evidence establishing that he [the appellant] was aware that the complainant might not have been consenting”. This difficulty for the appellant is exacerbated when one sees that his Honour used the words “he must be taken to have been put on notice”. It is not enough to show a mere possibility that the magistrate proceeded on a wrong view of the law. The appellant has the burden of establishing this proposition[16]. In the present case I am not so satisfied. Indeed the passages in his Honour’s reasons to which I have referred lead me to conclude that his Honour correctly apprehended the nature of the test and correctly applied a subjective test in the circumstances of this case. His Honour stated that the provision of the offence that gave difficulty to the appellant was “the provision that entitles the prosecution to rely on evidence establishing that he was aware that the complainant might not have been consenting” (emphasis mine). Further, the use of the words “he must be taken to have been put on notice” was synonymous with saying (in the context of his Honour’s reasons) that the appellant was in fact on notice – and therefore was aware that the complainant might not have been consenting during intercourse.
[16]See Portland Properties Pty Ltd v MMBW (1971) 38 LGRA 6 at 18 and Kymer Nominees Pty Ltd v Sinclair [2006] VSC 488 at [9].
During the course of argument, senior counsel for the appellant submitted that at the very least there was an ambiguity in his Honour’s reasons as to whether a subjective or objective test had been applied. It was then submitted that while there was no ground of appeal complaining about the adequacy of the magistrate’s reasons, I should remit the matter to the magistrate for the provision of further and better reasons. I reject this submission. In my view the magistrate’s reasons disclose the application of a subjective test[17]. His Honour’s path of reasoning is disclosed and the appellant is aware of the reasons why the case was lost[18], namely there was an absence of consent and the appellant was aware that the complainant might not be consenting.
[17]Even if I concluded that there were some apparently inconsistent statements in his Honour’s reasons (which I do not), it is to be remembered that an appellate court should endeavour to reconcile apparently inconsistent statements in the reasons for judgment of a judicial officer if that is possible before concluding that they are in fact inconsistent (see Road Transit Authority of New South Wales v McGuinness [2002] NSWCA 210 at [10] and Wellington Shire Council v Steedman [203] VSCA 115 at [14]). In this case the sentences of his Honour’s reasons to which I have referred are reconcilable and consistent in the way I have described above.
[18]See generally Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 per Ashley JA (with whom Warren CJ and Nettle JA agreed) at [38].
In further support of his argument, the appellant relied upon the entry made in the register concerning the rape being “a technical rape more an adolescent error than an offence of mens rea”. These words were (at the very least) unfortunate. There is no such thing as a “technical rape”. Rape is a serious criminal offence. However, there is nothing in these words which is of assistance to the appellant. In giving his reasons for discharging the appellant, the magistrate was doing no more than identifying that along the spectrum of possible circumstances which constitute the crime of rape, the circumstances of the present case were (in his Honour’s view) closer to one end of the spectrum than the other[19]. His Honour was not saying that there was no requisite mens rea. Indeed, his Honour had already concluded to the contrary on the previous day. This being an appeal by the appellant on a question of law only, it is not appropriate to say anything further about the entry in the register[20].
Was it open to the magistrate to be satisfied beyond reasonable doubt that the appellant possessed the necessary mens rea?
[19]While the use of the expression “technical rape” is to be eschewed, there is force in paragraph 4 of the respondent’s written submissions dated 4 June 2009, namely:
“In regard to the Court record, the ‘other reasons’ are an inelegant way of stating that although a rape has been made out (‘a technical rape’), this is an example of low level offending in that it was an adolescent error of judgement rather than the sinister modus operandi which is often associated with the mens rea of the offence.”
[20]There is no appeal in respect of the magistrate’s decision to discharge the appellant and therefore no occasion to look at the correctness or otherwise of that decision.
As the evidence I have set out above discloses, it would certainly have been open to the magistrate to conclude that while the appellant was engaging in sexual intercourse with the complainant he was aware that she was not consenting. However, that is not the conclusion the magistrate reached. His Honour concluded that the evidence was not “capable of establishing as fact his (the appellant’s) awareness that she (the complainant) was not consenting”. Whether one thinks that this was a generous view of the evidence or not, it is a conclusion which the magistrate made in the appellant’s favour.[21] The appellant’s argument now is that having concluded this matter in his favour, it was not open to conclude that at the relevant time he was aware that the complainant might not be consenting. There is nothing in this argument. As the evidence of the record of interview and the evidence of the appellant I have set out above discloses, it was well open to the magistrate to conclude that the appellant was aware at the relevant time that the complainant might not be consenting. Even if one could say that having concluded that the evidence was not capable of establishing as a fact the appellant’s awareness that the complainant was not consenting, one would have expected the magistrate to conclude the issue of the appellant’s awareness or otherwise of whether the complainant “might not be consenting” in the appellant’s favour, this expectation of itself would not warrant interfering with a factual finding that was clearly open to the magistrate[22].
[21]In context, it was no more than a conclusion by his Honour that the evidence did not establish beyond reasonable doubt that the appellant was aware that the complainant was not consenting at the relevant time. This conclusion does not foreclose the possibility of a finding that the appellant was aware that the complainant might not be consenting. Even if one assumes in the appellant’s favour that his Honour concluded that there was no evidence even capable of establishing that the appellant was aware the complainant was not consenting (a conclusion which would be wrong in law, having regard to the evidence I have set out above) – this also does not foreclose the possibility of a conclusion, unfavourable to the appellant, that the appellant was aware that the complainant might not be consenting.
[22]See generally Transport Accident Commission v O’Reilly [1999] 2 VR 436, and in particular the reference by Callaway JA at 460 [58] to “want of logic” not being “synonymous with error of law”.
The final argument put by the appellant was that the magistrate “erred in concluding that proof of circumstances by which the appellant must be taken to have been put on notice that the complainant might not have been consenting, established beyond reasonable doubt that the appellant was aware that the complainant might not have been consenting” (Ground 3). For the reasons already given, there is nothing in this argument. The finding by his Honour was, when read in context, a finding that the appellant was in fact on notice (and therefore was aware) that the complainant might not have been consenting during intercourse.
Conclusion
For the reasons given above, the appeal will be dismissed.
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