Dick v The Queen
[2002] WASCA 310
•22 NOVEMBER 2002
DICK -v- THE QUEEN [2002] WASCA 310
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 310 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:119/2001 | 10 SEPTEMBER 2002 | |
| Coram: | WALLWORK J MURRAY J ANDERSON J | 22/11/02 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES FLAVELL DICK THE QUEEN |
Catchwords: | Criminal law Sexual offences Directions concerning consent Whether adequate Whether honest and reasonable mistake should have been left to jury |
Legislation: | Criminal Code (WA), s 319(2) |
Case References: | Geraldton Fishermen's Co-Operative Ltd v Munro [1963] WAR 129 McKenzie v C J Coles & Co Ltd (1986) WAR 224 Proudman v Dayman (1941) 67 CLR 536 Case Stated by DPP (No 1 of 1993) 1993 66 A Crim R 259 Papdimitropoulos (1957) 98 CLR 249 S (1989) 64 ALJR 126 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DICK -v- THE QUEEN [2002] WASCA 310 CORAM : WALLWORK J
- MURRAY J
ANDERSON J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sexual offences - Directions concerning consent - Whether adequate - Whether honest and reasonable mistake should have been left to jury
Legislation:
Criminal Code (WA), s319(2)
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr K M Tavener
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Geraldton Fishermen's Co-Operative Ltd v Munro [1963] WAR 129
McKenzie v C J Coles & Co Ltd (1986) WAR 224
Proudman v Dayman (1941) 67 CLR 536
Case(s) also cited:
Case Stated by DPP (No 1 of 1993) 1993 66 A Crim R 259
Papdimitropoulos (1957) 98 CLR 249
S (1989) 64 ALJR 126
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1 WALLWORK J: On 30 July 2001 the appellant was convicted of four counts in a six count indictment. He was acquitted on the other two counts. He now appeals against the convictions.
2 The first two offences of which he was convicted were that on the same day he had sexually penetrated a boy who was under the age of 16 years, without the boy's consent. On the first occasion the applicant had introduced his penis into the boy's mouth. On the second he penetrated the boy's anus with his penis.
3 The third offence of which the appellant was convicted was that he had indecently dealt with a child between the ages of 13 and 16 years by masturbating himself in the child's presence. The fourth conviction concerned a charge that the appellant had attempted to sexually penetrate the victim who by then was 20 years of age by attempting to penetrate the victim's anus with his penis.
Directions Concerning Consent
4 As counsel for the appellant put it at the hearing of this appeal "the crux of the ground of appeal in relation to the convictions on counts 1, 2 and 6 relates to the directions given as to consent".
5 One of the submissions for the appellant was that in order for a consent to be vitiated or not regarded as a real consent, it must fall within one of the concluding words in s 319(2) of the Criminal Code (WA), those words being "obtained by force, threat, intimidation, deceit or any fraudulent means." It was submitted that the learned Commissioner had not clearly explained to the jury the differences between what might amount to persuasion as opposed to something approaching a threat, intimidation or something of that nature.
6 That submission overlooks the whole of the definition of consent in s 319(2) of the Code which is:
"(a) 'consent' means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means; …"
7 The second part of the above sentence is specifically worded so as not to detract from the words "freely and voluntarily given".
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8 At one part of the Commissioner's summing up he said: "The Crown case in relation to consent on count 2 is that [X] did not consent to the accused's penis penetrating his mouth. He was very young and the accused who was born in April 1960 was about 30 years of age at the time and 18 years older than [X]. [X] was confused about his own sexuality. The accused raised the subject of sex and impliedly threatened [X] by saying that his mum would die if she found out. The Crown case is that the accused was manipulative and psychologically overpowering and that he psychologically overpowered [X] in all of the circumstances such that he penetrated [X] without [X's] consent. The defence case is this incident didn't happen but if it did, then the accused was simply reassuring [X] in a pleasant, albeit persuasive, way when he spoke to [X]."
9 Counsel submitted that amongst other things, the learned Commissioner had not told the jury of the differences between what might amount to persuasion and what would amount to something approaching a threat or intimidation. That this was a case where the absence of consent was not obvious and the focus should have been on the way in which that consent was vitiated. It was submitted that words like "manipulative and psychologically overpowering" were not a sufficient direction in the circumstances and that approval of those words would be taking the law to new and dangerous levels. To refer to somebody as being "psychologically overpowering" could confuse the situation and apply to somebody with a strong or persuasive personality, or a forceful personality.
10 In my view, there is a clear difference between somebody who displayed a forceful or a persuasive personality and someone who "psychologically overpowered" the victim. It is a jury question.
11 Before he commenced to address the jury on the question of consent the learned Commissioner told them that consent was only an issue on counts 2, 3 and 6. He arranged for each member of the jury to be given a copy of the indictment. He told the jury that although the appellant had denied that the incidents had ever occurred, the Crown had to prove a lack of consent beyond a reasonable doubt and that the appellant did not have to establish anything.
12 The learned Commissioner gave what was in my view, a most detailed and thorough direction to the jury on the law as it applied to the alleged facts of the case. He repeatedly told the jury that the finding of the relevant facts was "entirely a matter for you as to what facts you find proved and what significance, if any, you attach to the facts that you do
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- find proved". He very clearly instructed the jury as to the burden and the standard of proof and told them that they had to assess the evidence with respect to each count separately, with no flow on between the various charges. Further, that with respect to counts 2, 3 and 6, before the appellant could be convicted, the Crown had to establish that the relevant activity occurred without the complainant's consent.
13 The directions on the question of consent as they related to those three charges occupy approximately eight pages of transcript. The learned Commissioner told the jury that consent is a question of fact and that they needed to judge the facts and make a judgment about the issue of consent. He told them that the question of consent could be judged by the general circumstances surrounding the particular event; that it could be express or implied, and that the jury could only draw an inference adverse to the accused if it was the only reasonable inference which could be drawn in all the circumstances. He told the jury that consent was consent which was freely and voluntarily given and which was not obtained by force, or threat, or intimidation of any kind, or by threats or deceit, or by fraud or such like. That a person who was tricked or scared, or for good reason felt threatened or intimidated, could hardly be described as giving a free and voluntary consent to a sexual act. He repeated again and again that it was a matter for the jury. Also, that for a person to consent he must know what he was consenting to and that "a consent does not have to be an enthusiastic consent to amount to a consent. A consent can be begrudging. It can be less than whole hearted, or less than enthusiastic, but if in the light of all of the circumstances existing and operative at the time in question it is a consent, then it is still nevertheless a consent."
14 The Commissioner related the last mentioned comments to the cross-examination of the complainant with respect to counts 2 and 3 and "the accused speaking in a reassuring and pleasant way, and in a persuasive way at the time". He told the jury it was a matter for them to consider the evidence of the complainant and to determine what words were said in relation to each count under consideration; that it was for them to characterise what words, if any, they found were said at the relevant time by the appellant to the complainant; to consider the context in which everything they found was said and the relative ages and familiar relationship of the two persons at the time. He said that in the final analysis of each of the counts 2, 3 and 6: "It is for you to determine whether you are satisfied beyond reasonable doubt that [X] did not give free and voluntary consent."
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15 In the course of the summing up the learned Commissioner told the jury that they would consider the relationship between the complainant and the appellant at the particular time and the complainant's evidence about his uncertainty as to his sexuality. He referred to the evidence which had been given at the trial of what had been said at the relevant times. He dealt with the facts alleged in the particular counts and what had been said by both the complainant and the appellant about those matters.
16 The learned Commissioner emphasised to the jury that it had to consider the relationship between the two persons at the relevant times. He put the defence case in some detail, and in particular, that the defence had asserted that the complainant would have complained earlier about any sexual misconduct if any such conduct had occurred. Also that by the time the last charged matter had occurred, in all the circumstances it was more consistent with consent than otherwise.
17 The Commissioner told the jury that the Crown case was that the complainant did not complain because he was scared of the impact it might have had on his mother and also his sister and that he did not want his sister's children to know; that the Crown contended that as the complainant grew older the appellant had continued to exert power and control over him. He told the jury to consider all those factors and that what it made of them was entirely a matter for them. It was a question of fact and a question for the jury. The Crown must prove lack of consent.
18 In conclusion the learned Commissioner said:
"In summary then on this issue of consent, it means consent clearly and voluntarily given and it needs to be considered, and it can only be considered, in the light of the circumstances as you find them to be at the time of the particular incidents under consideration. You should not reach a finding that there was a lack of consent or consent on one or more of the counts 2, 3 and 6 simply because you have made a like finding on one or more of the others."
19 It was submitted for the appellant at the appeal that it had not been put to the jury that there may be a fine line between persuasion and manipulation and that it had not been put to the jury that the complainant had given evidence that he had been curious and attracted to the appellant and had felt flattered by the attention of the appellant.
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20 The appellant in his written submissions submitted that suggesting that the complainant's parents would be upset was part of the means of persuading the complainant to submit rather than a threat that if he did not, then his parents would be told about his sexuality or that they would literally die. It was submitted that the jury should have been directed that the words were capable of being viewed in that context and if they were then they would not vitiate consent. Similarly, if the complainant was "manipulated" or "taken advantage of" that would not vitiate consent.
21 In my opinion, those submissions should not be upheld. The complainant' evidence was obviously capable of being accepted by the jury and proving that there had not been a free and willing consent. The complainant gave quite detailed evidence about what had happened on the particular occasions. It is consistent with the jury's verdicts of acquittal on two of the counts that the jury understood what it was they had to judge at the trial.
22 Having read the summing up by the learned Commissioner and the evidence of both the complainant and the appellant it is my view that the jury would have been left in no doubt concerning the aspects of the question of consent and that there was no misdirection by the learned Commissioner.
Honest and Reasonable Mistake
23 It was also submitted for the appellant that the learned Commissioner had not directed the jury on the question of honest and reasonable mistake. The question arises whether or not such a "defence" was open on all the evidence.
24 It was submitted for the appellant that the prosecution evidence was that the 13 year old boy had been frightened but had felt flattered at the appellant taking an interest in him and had voiced no objection to what had then occurred; that this raised a s 24 defence. It was submitted that on the complainant's evidence and when he was 13 years of age, there had been no overt threats alleged against him. The appellant was said to have been speaking in a reassuring pleasant tone. There had quite clearly been no physical resistance offered and the complainant had appeared to be compliant to all the requests made of him. It was submitted that a s 24 defence had not been left to the jury.
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25 In Proudman v Dayman (1941) 67 CLR 536 at 541 Dixon J said:
"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe."
26 Those words have been applied in this State by Wallace J in McKenzie v C J Coles & Co Ltd (1986) WAR 224 at 228 where his Honour said:
"For these reasons I am of the opinion that the appellant's plea that his Worship's finding that the respondent held an honest and reasonable but mistaken belief in the quality of the food product the subject of each complaint was unsupported by the evidence and against its weight, succeeds. For these reasons I would allow both appeals …."
27 It has always been required in the "Code" States that there must be evidence of an honest and reasonable but mistaken belief before this "defence" is left to the jury - see Geraldton Fishermen's Co-Operative Ltd v Munro [1963] WAR 129 at 135 and 136.
28 The appellant's submission that the evidence of the complainant that he was attracted to the appellant and curious about the sexual activity which the appellant was performing on him, and that he did not offer any objection or resistance to what was occurring on occasions, in my view, did not raise a sufficient foundation for the application of s 24 of the Criminal Code. The appellant's approach to the complainant could have been viewed by the jury as taking advantage of a child and this is obviously the view the jury took.
29 In my view, there was not sufficient evidence that the appellant could have held an honest and reasonable but mistaken belief. This ground of appeal should not be upheld.
Second Ground of Appeal
30 The second ground of appeal is that the learned Commissioner erred in failing to direct the jury as to the importance of the date and location of the alleged offence in count 4 of the indictment. That count alleged that the appellant had indecently dealt with the child who was then between
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- the age of 13 and 16 years, by masturbating himself in the child's presence.
31 The appellant complains that the learned Commissioner told the jury that the Crown did not need to establish the dates referred to in that count, which were "on a date unknown between 1 November 1992 and 27 January 1993" at Mosman Park. The learned Commissioner told the jury:
"The reason those particular dates have been chosen is to capture the time that the accused and his wife and the children lived at the Mosman Park flat. What you must be satisfied of is that an incident happened of the sort that [X] described at the Mosman Park flat, which perhaps I can describe as the G-string incident … if it was sometime outside of that particular time period but at the Mosman Park flat, then that is sufficient. You will appreciate that there is an evidential or factual issue here because there was some inconsistency so far as the evidence of [X] and the accused was concerned. You will remember that [X] said that this present was a birthday present for the accused but that the accused said that it was a Christmas present. That is really a matter for you that goes to the credibility and reliability of each of [X] and the accused, but at the end of the day, all you would need to be satisfied of is that this incident happened and that it happened at the Mosman Park flat. And that it is the G-string incident that we are talking about."
32 It was contended on the appeal that if the jury had accepted the complainant's evidence as to buying the G-string as a birthday present then the offence could not have happened at the Mosman Park flat as alleged. It therefore amounted to more than simply an issue of credibility or a reliability, as directed by the Commissioner. If the jury accepted the complainant's evidence, which they clearly did in convicting the appellant of that count, then on the complainant's own account the appellant contended an offence would not have happened at a time when the accused was living at the Mosman Park flat.
33 In my opinion, if the jury accepted that at that particular place the offence occurred, then that would be sufficient to sustain the conviction. I cannot see that the learned Commissioner's direction was in error. In my view, there is nothing in this ground of appeal and it should not be upheld.
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Final Ground of Appeal
34 The last ground of appeal concerned the conviction on count 6 of the indictment which was a charge of attempted sexual penetration without the child's consent. It was alleged that the appellant attempted to penetrate the child's anus with his penis. It is complained that the learned Commissioner erred in failing to adequately put the defence case as to consent, in that he failed to direct the jury as to the relevance of the relationship between the appellant and the complainant which could have explained why the appellant did not desist immediately.
35 It was contended that the Commissioner had not directed sufficiently as to the background of the relationship between the two persons when directing the jury on this particular count; that the fact that the appellant had not desisted immediately when he was told "No", and "Go away", by the complainant did not automatically equate with an absence of consent.
36 In directing the jury on this count the learned Commissioner said:
"If you find that the accused did attempt to sexually penetrate [X's] anus, then when you consider and determine consent on this count, you consider it in the context of the relationship between [X] and the accused, as you find it to have been at the time it happened. If you were satisfied that this incident happened, then before you consider the background to the incident you may well wish to consider the factual circumstances of the incident itself insofar as they relate to consent. The Crown case is that [X] was lying on the sofa in the lounge room of the house in Northam and that he said and did nothing that could be construed as an invitation to the accused to act in the way [X] says the accused did. The Crown case is that you should accept [X's] evidence that the accused said that he wanted to feel [X] and that the accused tried to pull down [X's] boxer short pyjamas. [X] says that he said to the accused, 'No', and 'Go away'. He says that the accused persisted and succeeded in taking down his boxer shorts and [X] also says the accused then overawed him and kept trying to push his penis into his anus despite him saying 'Go away', and 'Stop'."
37 The learned Commissioner said a little more about the alleged facts of the incident and told the jury that the defence was that the incident did not occur, and that if it did, [X] consented to it. He explained to the jury that if the accused continued with his attempt despite [X] saying no, then it did not necessarily amount to a lack of consent. Importantly, his
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- Honour said: "It is entirely a matter for you to determine in the light of all of the circumstances as you find them to be at the time". He also told the jury that if they found the incident happened, then the jury was entitled to consider it in the context of the relationship between [X] and the accused "…as you find it to have been at the time".
38 It was submitted for the appellant that the direction should have been put in the context that there may be a refusal but that with further dealings between the parties, it may then become a consent. It was submitted that the direction had not been put on that basis. It was contended that the appellant's persistence could have been seen as an attempt to have the complainant change his mind and submit.
39 It was conceded that the evidence had been that the appellant had persisted with the attempt but it was said it was a situation "where, if you like, the attempt was already underway and he merely persisted".
40 In my opinion, the factual situation was a question for the jury and they were more than adequately directed on the question of consent. It was conceded for the appellant that the jury knew the background of the relationship between the appellant and the complainant. However, it was submitted that the jury may well have thought that at law, as soon as one party says no and verbalises an absence of consent, that is the end of the matter. It was submitted that that is not necessarily the case where there has been an ongoing relationship; that a refusal does not necessarily end the matter as far as consent is concerned and that efforts made to change a person's mind taking into account the relationship between them, do not necessarily amount to an offence.
41 In my opinion, this ground of appeal should not be upheld as the jury were adequately directed.
42 The end result is that, in my view, the appellant has not made out any of the grounds of appeal. The appeal should be dismissed.
43 MURRAY J: I agree with Wallwork J that this appeal should be dismissed. I have nothing to add to his Honour's reasons for that conclusion.
44 ANDERSON J: I have read the judgment of Wallwork J and agree with it. There is nothing I can usefully add. I agree that the appeal must be dismissed.
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