Conan Teague (a pseudonym)[1] v The Queen
[2018] VSCA 77
•28 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0070
| CONAN TEAGUE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | WEINBERG, BEACH and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 March 2018 |
| DATE OF JUDGMENT: | 28 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 77 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1340 (Judge Davis) |
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CRIMINAL LAW – Conviction – Appeal – Charges of rape and common assault – Special hearing under Part 3 of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Jury finding that applicant committed offences of rape and common assault – Custodial supervision order imposed with nominal term of 25 years – Appeal against jury’s finding on rape charge – Applicant suffers from intellectual disability – Expert evidence about intellectual disability’s capacity to affect applicant’s understanding that feigned consent was not true consent – Relevant expert evidence not led – Failure to lead relevant expert evidence resulted in miscarriage of justice – Special hearing unbalanced and unfair – Appeal allowed – Jury’s finding that applicant committed offence of rape set aside – Custodial supervision order set aside – Matter remitted to County Court for rehearing – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 15, 17, 18 and 28 – Evidence Act 2008, s 80.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC with Mr B Johnston | James Dowsley & Associates |
| For the Crown | Mr B L Sonnet with Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
BEACH JA
HARGRAVE JA:
On 12 June 2014, the applicant was charged with one count of common assault and one count of rape. The charges arose out of a dispute that occurred earlier that day between the applicant and the complainant, a registered sex worker.
The applicant has an intellectual disability. On 18 April 2016, a jury was empanelled to determine whether the applicant was fit to stand trial. Evidence was called, by the Crown, from a forensic psychologist (Dr Joel Godfredson) and, by the applicant, from a clinical neuropsychologist (Ms Jane Lofthouse). After receiving appropriate directions from the judge, the jury deliberated and subsequently returned a verdict that the applicant was not fit to stand trial.
On 19 April 2016, another jury was empanelled for the purposes of conducting a special hearing under Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Crimes Mental Impairment Act’). The purpose of the special hearing was to determine whether, on the evidence available, the applicant committed the offences with which he was charged, or was not guilty of those offences.[2]
[2]See s 15 of the Crimes Mental Impairment Act. While s 15 provides that a purpose of a special hearing is also to determine whether or not an accused is not guilty because of mental impairment, the applicant did not run this defence at the special hearing.
During the course of the special hearing, the Crown called the complainant, a neighbour of the complainant who witnessed the alleged assault (‘CD’) and three police officers. The defence called Ms Lofthouse.
On 27 April 2017, the jury returned a verdict that the applicant had committed the offences with which he was charged. On 12 September 2016, the judge imposed an aggregate custodial supervision order for a period of 25 years in respect of the offences the jury found had been committed.
The applicant now seeks leave to appeal against the jury’s findings that he committed the rape with which he was charged.[3] The applicant’s two proposed grounds of appeal are interrelated and concern Ms Lofthouse’s evidence. The grounds are:
1.A substantial miscarriage of justice has occurred in circumstances where the jury did not hear evidence of the potential impact of the applicant’s intellectual functioning on his ability to understand whether the complainant was or was not consenting.
2.A substantial miscarriage of justice has occurred as a result of:
(a)the failure of the applicant’s counsel to maintain his attempt to adduce relevant and admissible evidence from Ms Lofthouse; and
(b)the approach of the prosecution, thereafter, to the evidence of Ms Lofthouse.
[3]See ss 15(c), 17(1)(c) and 18(3)(c) of the Crimes Mental Impairment Act.
The proposed grounds of appeal relate only to the jury’s finding that the applicant raped the complainant. No challenge was made in this Court to the jury’s finding that, prior to the rape, the applicant assaulted the complainant.
Circumstances of the alleged offending
The circumstances of the alleged offending were not in dispute during the special hearing. The issue in the special hearing was whether the Crown could prove beyond reasonable doubt that the sexual penetration of the complainant by the applicant occurred while the applicant was aware that the complainant was not consenting or might not be consenting, or while not giving any thought to whether the complainant was not consenting or might not be consenting.[4]
[4]See s 38(2)(a)(i) and (ii) of the Crimes Act 1958 as in force prior to 1 July 2015.
The circumstances giving rise to the charges were as follows. The applicant and the complainant were not known to each other. The complainant worked as a registered sex worker, and advertised her services online.
On 12 June 2014, the applicant obtained the complainant’s contact details online and contacted the complainant at 6:45 am by text message, requesting her services and prices. The complainant responded by text message with her rates and information. The applicant indicated that he wanted her services immediately. They arranged a 45 minute session at the complainant’s apartment for 8:00 am for the cost of $250.00.
At 7:55 am, the applicant called the complainant, stating that he was outside her apartment complex. She buzzed the applicant in, allowing him through the front gate and into the premises.
The complainant opened the front door to the applicant and allowed him inside. She was wearing a corset, underwear, stockings and high heels. As she was showing the applicant to the bedroom, he was trying to touch and hold the complainant. She told the applicant to stop and explained that she was a sex worker, therefore he must pay her first. The applicant ignored her request and started pulling at her corset and trying to grab her breasts. The complainant realised that the applicant likely had no money and his behaviour was frightening her. She walked toward the front door and told the applicant to leave. The applicant began aggressively yelling at her from the bedroom.
In fear of the applicant’s behaviour, the complainant stepped out her front door in hope that the applicant would follow and leave the apartment. CD, the neighbour to whom we have referred, overheard the incident. In particular, he heard the complainant telling the applicant to leave or she would call the police. CD further observed the applicant trap the complainant at the base of the stairs. CD approached the pair and the applicant backed off a little bit. He told the applicant to ‘fuck off and go somewhere else’. This had no effect. The applicant continued yelling at the complainant and demanding she return to her apartment.
The applicant grabbed the complainant by her hair and pulled her toward the apartment (charge 1 – common assault). The complainant was terrified. The applicant then grabbed her by her arm and dragged her into the apartment.
CD returned to his apartment and called 000.
Once inside, the applicant pushed the complainant down the hallway toward the bedroom. The applicant then unzipped his pants. The complainant pleaded with the applicant to calm down and at least allow her to get a condom. The applicant resisted this at first, but finally calmed down once the complainant indicated that she would have sex with him on the condition a condom was used. The complainant only agreed to sex out of fear of the applicant inflicting serious injury on her.
After some initial touching and kissing, the applicant inserted his penis into the complainant’s vagina (charge 2 – rape). After a short period of sexual intercourse the applicant ejaculated and the complainant moved off him, took the condom and placed it in a plastic bag. The applicant remained on the bed for some time, refusing to leave straight away.
When police arrived, the applicant initially would not allow the complainant to answer the door bell. She convinced him that it was best to let them in otherwise the police would break in. The complainant answered the door, explained the events to police and allowed them into her apartment.
The applicant was arrested and taken to St Kilda police station for questioning. During questioning, the applicant denied any aggression towards the complainant. He stated that the complainant did not care about the absence of money and agreed she would have sex with him regardless. He stated that the complainant said he could pay her next time. He agreed that sexual intercourse occurred, but denied that he raped the complainant.
The evidence of Ms Lofthouse
The applicant was examined by Ms Lofthouse in 2009, 2014 and 2016. The most relevant examinations for present purposes are Ms Lofthouse’s examinations in 2014 and 2016. Those examinations were conducted for the purpose of obtaining her evidence in relation to the applicant’s cognitive abilities and his fitness to stand trial.
In her report following her examination in 2014 (‘the first report’), Ms Lofthouse recorded her findings following testing. Ms Lofthouse found the applicant to have an IQ of 55. She expressed the following conclusions:
Due to intellectual impairment [the applicant] is likely to have been impulsive and somewhat confused during the alleged offences. He would however most likely have known the nature and quality of his conduct.
…
Although [the applicant] denies committing the current charges he was able to understand and express an opinion that the alleged behaviour that led to the current charges would have been wrong.
Based on the above it appears that [the applicant] does not have a defence of mental impairment in the current matter.
For the purposes of her 2016 examination, Ms Lofthouse was provided with a transcript of the complainant’s evidence at committal. Ms Lofthouse was asked to consider a number of issues, including questions concerning the applicant’s ability to understand the nature of rape and the concept of consent to sexual intercourse against a background of the complainant ‘feigning consent’ because she feared a violent assault from the applicant.
In her report following her 2016 examination of the applicant (‘the second report’), Ms Lofthouse again stated that the applicant had an IQ of 55. She described this score as falling within ‘the extremely low range’, and said that the applicant’s intellectual function was consistent with a diagnosis of a ‘mild intellectual disability’. Ms Lofthouse said that the applicant’s intellectual deficits were likely to have played a significant role in contributing to the behaviour that led to his charges; and that the applicant’s significant intellectual impairment was likely to have contributed to a lack of understanding with respect to the complex social interactions that he encountered on 12 June 2014.
In the second report, Ms Lofthouse concluded:
Due to intellectual impairment [the applicant] is likely to have been somewhat confused during the alleged offence and it is possible that he did not fully understand the situation in light of [the complainant] feigning consent to engage in sexual intercourse. It is likely that [the applicant] understands the nature of rape but at the time of the incident it is possible that the complexity of the social situation impinged on his ability to fully understand the nature and quality of his conduct in the moment.
…
Due to [the complainant’s] feigned consent it is possible that on 12 June 2014 [the applicant] did not know his conduct was wrong.
The course of the special hearing
As we have already observed, on the special hearing the Crown called the complainant, CD and three police officers. The applicant’s only witness was Ms Lofthouse.
Ms Lofthouse gave evidence of her examinations of the applicant. At different points in her evidence, Ms Lofthouse referred to the applicant’s IQ as being either 55 or 56. Nothing turned on this apparent discrepancy during the special hearing, or in this Court. Ms Lofthouse described the applicant’s IQ as being ‘quite significantly below average’, and said that it fell into the ‘mildly intellectually disabled range, which we refer to as the extremely low range’. Putting this evidence in context, Ms Lofthouse said that IQ scores ‘from 50 downwards’ equate to a profound intellectual disability.
Having elicited, from Ms Lofthouse, matters of history and her assessment of the applicant, the applicant’s counsel[5] asked Ms Lofthouse:
Based on what you had regard to as at March of this year [2016], did you form an opinion as to whether or not his intellectual functioning deficits may have impacted on his behaviour at the time of the offending?
The prosecutor[6] objected to this question.
[5]Not counsel who appeared in this Court.
[6]Not counsel who appeared in this Court.
Following the prosecutor’s objection, the judge and the prosecutor debated the objection. It would appear from the debate that the prosecutor had two bases for his objection: first, he was concerned that the question was an attempt to run a defence of mental impairment which had previously been eschewed by the applicant;[7] and secondly, he was concerned that Ms Lofthouse might be being asked to express a view ‘on an ultimate issue’.
[7]No doubt as a result of Ms Lofthouse’s opinion as expressed in the first report.
Two points may immediately be made about the prosecutor’s concerns. First, the mere fact that an opinion in the second report may have been expressed for one purpose (whether there was a defence of mental impairment) does not foreclose the possibility that that opinion might be relevant on another issue (in this case, the capacity of a very low IQ to impact on the ability of the applicant to understand that a ‘feigned consent’ was no consent).
Secondly, as to the ultimate issue point raised by the prosecutor, the debate before the judge appears to have been conducted without anyone realising that s 80 of the Evidence Act 2008 had abolished the so-called ultimate issue rule.[8]
[8]Section 80 of the Evidence Act 2008 relevantly provides:
Evidence of an opinion is not inadmissible only because it is about … an ultimate issue … .
After hearing from the prosecutor, the judge turned to the applicant’s counsel. During the course of the debate between the judge and the applicant’s counsel, the judge expressed negative views as to the admissibility of the evidence counsel was seeking to lead from Ms Lofthouse. While the judge never ruled that any particular question could not be asked, the applicant’s counsel appeared to be content to accept that there were problems with one or some of the questions he wished to ask. Ultimately, the judge said:
It’s a matter, as it were, for you both as to how you wish to put your cases and I don’t seek to limit you. But clearly, to the extent that you are trying to avoid the line,[9] I think you’re going to end up with a bit of a mess and that’s really
— if, forensically, you wanted to do that and you want to put that evidence in, I’ll hear [you] in relation to it, it’s up to you.
[9]It is not entirely clear from the debate what the references in the transcript to ‘the line’ were meant to mean — other than perhaps the line between a permissible question and an impermissible question.
Counsel then requested a short adjournment for the purpose of discussing the matter between themselves. After a short adjournment, counsel told the judge that there was now ‘consensus at the Bar table’. The applicant’s counsel said:
We’ll both do our best to try and avoid being in the sticky situation whereby we’ve got the falsity (sic) in essence of saying the findings are open to you. You’ve heard no evidence but in reality you have so we’ll proceed with caution.
Counsel for the applicant then asked Ms Lofthouse a few more questions, but did not ask her anything about how the applicant’s intellectual disability (or IQ of 55) might have affected the applicant’s capacity to understand whether the complainant was in fact consenting when she ‘feigned consent’ after the applicant’s assault of her.
The prosecutor cross-examined Ms Lofthouse. The purpose of the cross-examination was to elicit evidence from Ms Lofthouse that the applicant had the ability to research the internet, to read, to write and to drive; he was a person who knew what he wanted; he was capable of telling untruths in his own interests; he knew he had to pay the complainant for sex; he was capable of being ‘very persistent in terms of what he wants’; he was capable of holding down employment; and he had behavioural problems and had been aggressive in the past. All of this cross-examination was conducted in an attempt to establish that the applicant was aware that the complainant was not consenting or might not be consenting when he sexually penetrated her.[10]
[10]See s 38(2)(a)(i) of the Crimes Act 1958, and note the definition of ‘consent’ in s 36 being ‘free agreement’ where a person does not submit because of force or the fear of force to that person.
After the prosecutor had been permitted to ask many questions that went to the issue of the capacity of the applicant to understand whether or not the complainant was consenting, counsel for the applicant objected — saying that he had given his learned friend ‘some latitude’ but that the prosecutor was ‘about to do exactly what he said I wasn’t allowed to do’. The prosecutor appeared to accept this proposition, and there was no further cross-examination of Ms Lofthouse.
The applicant’s counsel re-examined Ms Lofthouse. Notwithstanding that the prosecutor’s cross-examination had opened up Ms Lofthouse’s opinion as to the capacity of the applicant to understand particular matters, counsel for the applicant did not seek to re-examine Ms Lofthouse about her expert opinion as to the capacity of the applicant (or more generally a person with an IQ of 55) to understand or misunderstand social cues, or the possibility that the applicant’s intellectual disability might have had some impact on the applicant’s capacity to understand that the complainant’s feigned consent was, in truth, no consent.
In his final address, the prosecutor spent a considerable amount of time seeking to debunk the notion that the applicant may have misread cues from the complainant, and that he might not have been aware that the complainant’s feigned consent was not consent or free agreement. In support of these submissions, the prosecutor relied heavily on answers he had obtained from Ms Lofthouse in cross-examination. At one point, the prosecutor said:
It’s not a matter of misreading [social cues], it’s a matter — we say it’s open for you to find on the basis of [Ms] Lofthouse’s evidence that it’s a matter of him persisting with what his initial determination was to have sex with her regardless of her lack of consent without payment.
…
[Ms Lofthouse’s] evidence in effect scuttles, if you accept it — scuttles, and you don’t have to accept an expert’s evidence, but I’d say you wouldn’t have a reason to not accept that particular part of her evidence. Her evidence scuttles the thesis that he’s wrongly responded to the social cues. The concrete thinking is such he’s kept going the way he was always going and it leads right into the issue of consent.
Throughout the prosecutor’s address, the prosecutor returned to Ms Lofthouse’s evidence as support for the prosecution case that the applicant was aware that the complainant did not consent to sexual intercourse. The prosecutor’s address was, in substance, that Ms Lofthouse (the applicant’s expert) supported the prosecution case.
The parties’ contentions
In support of both proposed grounds of appeal, counsel for the applicant submitted that a miscarriage of justice occurred at trial because relevant and admissible evidence that was capable of being given by Ms Lofthouse (particularly, her opinion set out in the second report) was not led. Worse, the prosecutor’s cross-examination permitted the prosecutor to make submissions that Ms Lofthouse’s evidence was supportive of the Crown case, when in fact the second report was capable of supporting the applicant’s defence. As a result of the course the special hearing took, the applicant was deprived of the only defence he had in respect of the rape charge. It was thus submitted that the special hearing was both unbalanced and unfair.
In a conspicuously fair submission, counsel for the Crown conceded that this was a ‘difficult trial to defend’. Counsel conceded that there was relevant and admissible evidence that Ms Lofthouse could have given, and that the evidence she actually gave in the special hearing gave a misleading impression of her true view as to the capacity of the applicant’s intellectual deficits to impinge upon his ability to understand whether the complainant’s feigned consent was in fact free agreement. Notwithstanding these concessions, counsel for the Crown was keen to ensure that we were apprised of all of the relevant exchanges during the special hearing, from which we would then determine whether the applicant’s proposed grounds of appeal had been made out.
Analysis
In our view, the applicant’s submissions must be accepted. There was only one issue in the special hearing. The issue was whether there was a reasonable possibility that, by reason of his intellectual deficits, when the complainant feigned her consent, the applicant was not aware that the complainant was not consenting or might not be consenting. On that issue, the expert opinions of Ms Lofthouse were relevant and admissible.[11] Ms Lofthouse was capable of describing, at least, the possible effects that an IQ of 55 might have on a person’s ability to understand and be aware of particular matters (in this case, consent or free agreement) in various circumstances (again in this case, one involving feigned consent).
[11]See generally Hawkins v The Queen (1994) 179 CLR 500.
Ms Lofthouse’s opinions that were supportive of the applicant were not put before the jury because there appears to have been a misunderstanding, involving both counsel, about what used to be called the ultimate issue rule. In this regard, the judge was not given the assistance from counsel that she was entitled to expect. That said, the error in the conduct of this special hearing was not brought about by any ruling or determination made by her Honour.
The special hearing was both unbalanced and unfair because, on the evidence called, the jury would have been left with the impression that Ms Lofthouse’s evidence supported the prosecution case. While some of her evidence plainly did support the prosecution case, the jury should also have had before it Ms Lofthouse’s express opinion that intellectual deficits of the kind suffered by the applicant had the capacity to impair a person’s ability to understand that a feigned consent was not a true consent.
The failure by the applicant’s counsel in the special hearing to persist with his attempt to lead Ms Lofthouse’s opinions was not the product of any rational forensic choice.[12] Indeed an affidavit sworn by the applicant’s former solicitor discloses a failure by those then representing the applicant to appreciate the abolition of the ultimate issue rule. That said, even if the rule had not been abolished, it’s existence would not have precluded Ms Lofthouse from giving relevant and admissible evidence about the expected or usual consequences, on thinking and awareness, caused by an intellectual disability of the kind suffered by the applicant.
[12]See TKWJ v The Queen (2002) 212 CLR 124, 135 [33].
It follows from what we have said, that the jury’s finding on the charge of rape must be set aside. The consequence of setting aside that finding is that the 25-year custodial supervision order must be set aside. The question of what (if any) supervision order should be made in respect of the jury’s finding on the assault charge will need to be determined afresh. We are not in a position to make that determination. It is best made before a court of first instance where up to date material about the applicant’s condition, and other relevant matters, can be tendered and (if necessary) challenged. In making a determination as to what (if any) supervision order should be made in respect of the charge of common assault, we assume that the fact that the applicant has already been the subject of a custodial supervision order since 2016 will be of considerable relevance.
Conclusion
We will make the following orders:
1. The application for leave to appeal is granted.
2. The appeal is allowed.
3. The jury’s finding on 27 April 2016 that the applicant committed the offence of rape is set aside. The jury’s finding that the applicant committed the offence of common assault is confirmed.
4. The declaration made in the County Court that the applicant is liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the custodial supervision order with a nominal term of 25 years, imposed on 12 September 2016, are set aside.
5. The special hearing in respect of the charge of rape is remitted to the County Court for rehearing and determination pursuant to Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
6. The question of whether the applicant should be declared a person liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and what, if any, supervision order should be imposed on the applicant in respect of the jury’s finding that he committed the offence of common assault, is remitted to the County Court for rehearing and determination.
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