Director of Public Prosecutions v Austin (No 4)

[2023] ACTSC 200

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Austin (No 4)

Citation: 

[2023] ACTSC 200

Hearing Dates: 

21-24 July 2023

Decision Date: 

24 July 2023

Reasons Date:

28 July 2023

Before:

Baker J

Decision: 

(1)    I refuse the Accused’s no case application in respect of Count 4, dated 21 July 2023.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sexual offence proceedings – no case application – whether complainant’s evidence indicates relevant act was performed by complainant rather than accused – application refused

Legislation Cited: 

Crimes Act 1900 (ACT) ss 50, 54, 60

Cases Cited: 

Burns v The Queen [2012] HCA 35; 246 CLR 334

Doney v The Queen [1990] HCA 51; 171 CLR 207

Jiminez v R [1992] HCA 14; 173 CLR 572

LK v The Queen [2010] HCA 17; 241 CLR 177

May v O’Sullivan [1955] HCA 38; 92 CLR 654

Ryan v The Queen [1967] HCA 2; 121 CLR 205

Parties: 

Director of Public Prosecutions ( Crown)

Nathan James Austin ( Accused)

Representation: 

Counsel

M O’Connell ( DPP)

M Jones ( Accused)

Solicitors

ACT Director of Public Prosecutions

Kamy Saeedi Law ( Accused)

File Number:

SCC 237 of 2022

BAKER J:      

Introduction

1․The accused, Nathan Austin, is charged with six counts of sexual intercourse without consent contrary to s 54 of the Crimes Act 1900 (ACT) and one charge of an act of indecency without consent contrary to s 60 of the Crimes Act. Each act is alleged to have occurred at the complainant’s room, in Australian National University accommodation, on 26 November 2021.

2․At the conclusion of the prosecution case, Ms Jones SC, who appeared for the accused, made a ‘no case’ application in respect of Count 4 of the indictment. Count 4 is a charge of sexual intercourse without consent contrary to s 54(1) of the Crimes Act, relating to an allegation of penile-vaginal sexual intercourse that occurred when the complainant was on top of the accused.

3․In brief, Ms Jones SC submitted that because the complainant “brought her weight down” on the accused’s penis, it was the act of the complainant, rather than the accused, which resulted in penetration. In these circumstances, Ms Jones submitted that the first element of this count could not be established by the prosecution.

4․After hearing submissions from the parties, I indicated that I was satisfied that the evidence taken at its highest, and particularly the evidence that the accused rolled the complainant on top of him and that he guided his penis into the complainant's vagina is sufficient to establish the first element of Count 4; namely, that the accused engaged in sexual intercourse with the complainant. These are my reasons for so ordering.

Background

5․The prosecution allege that the complainant met the accused at Mooseheads nightclub on the night of 25 November 2021. They had attended school together and had not seen each other since year 9. The complainant and the accused talked, danced together, and engaged in consensual kissing at Mooseheads. In the early hours of 26 November 2021, they returned together to the complainant’s accommodation. As they left the nightclub, the complainant told the accused that she did not wish to have sex and that if he was returning to her accommodation to have sex, he should “just go home”. The complainant again informed the accused that she did not wish to have sex as they walked back to her accommodation; outside her door; and after they got into bed together.

6․The prosecution case is that the complainant and the accused consensually kissed in bed. The accused then digitally penetrated the complainant’s vagina twice. The complainant continued to engage in intimate kissing with the accused whilst the accused digitally penetrated the complainant’s vagina the first time. These first two acts of digital penetration were not charged.

7․Counts 1 and 2 on the indictment related to two further instances of digital penetration, which the prosecution alleges occurred without the complainant’s consent, the accused being reckless to the complainant’s lack of consent. Count 3 related to a first instance of penile-vaginal penetration without consent, which the prosecution alleges occurred while the accused was on top of the complainant.  

8․Count 4 refers to a second instance of penile-vaginal penetration without consent, which allegedly occurred while the complainant was on top of the accused. The complainant’s evidence was that the accused told her “the only way it’s going to work is if you get on top”, and that he subsequently rolled her body on top of his and guided his penis to her vagina. She did not allege this movement was forceful, and acknowledged that she did not physically resist this movement. The complainant gave evidence that she lowered her body on to the accused’s penis and penetration occurred. She said that this was too painful, and that she “rolled off” the accused.

9․Counts 5 and 6 relate to two subsequent instances of digital penetration, which were also alleged to be without consent, and Count 7 relates to an allegation that the accused “rubbed” his penis on the complainant’s body and put the complainant’s hand on his penis without her consent.

Legislation

10․Section 54(1) of the Crimes Act provides:

54 Sexual intercourse without consent

A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.

11․Sexual intercourse is relevantly defined in s 50 of the Crimes Act as follows:

sexual intercourse means—

the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or

The parties’ submissions

Submissions made on behalf of the accused

12․Ms Jones SC, who appeared for the accused, submitted that the evidence, taken at its highest, is not capable of establishing the physical element of Count 4 – that is, that the accused engaged in sexual intercourse with the complainant. She submitted that the act of engaging in sexual intercourse was the act of the complainant (lowering herself onto the accused’s penis), not the accused.

13․In helpful written submissions, Ms Jones SC fairly extracted all of the evidence of the complainant concerning the acts that were alleged to constitute Count 4. However, she emphasised the following evidence of the complainant in her Evidence in Chief Interview and cross-examination in relation to that count:

(a)“I like sat down on it”; “I like kind of sat down like on the penis a little bit”; and “I, like, sat down on it but it was, like, way too painful.”

(b)“I think he had his hand on his penis, and was like guiding it, so like I really like only.”

(c)“then I like – his hands are like on my thighs so I – my legs like on either side of his waist.”

(d)“You are above him, and then you move your body down so that…? ---Yes

So your genital area, your vagina, is moving down towards the top of his penis? ---Yes, my waist, yes.

And you bring your weight down on his penis? ---Yes.”

(e)Okay, so then did you lift your body up and take your body away from being on top of him? ---Yes, lift or roll, yes, lift.“

(f)“You were the one who elevated your body so that you were no longer having contact with him? ---Yes.”

14․Ms Jones SC also referred to the following evidence of the accused in relation to Count 4:

(a)“so she hopped on top of me and then, um, put my penis in”

(b)“So she then hopped on top, tried to put my penis in.”

(c)“she’s ended up on top of you? ---Yes.

And you said she inserted your penis? ---Yes.”

(d)“and then she’s tried to put it in, and has barely even done anything.”

15․Ms Jones SC submitted that it was apparent from the above evidence that it was the complainant who lowered herself onto the penis of the accused.

16․Ms Jones SC referred to the decision of the High Court in Burns v The Queen [2012] HCA 35; 246 CLR 334 at [86], in which Gummow , Hayne , Crennan , Kiefel and Bell JJ, Gleeson CJ agreeing, said that, “absent intimidation, mistake, or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another”. Ms Jones SC contended that no such vitiating factor existed in the present case, and accordingly, that there was no causal connection between this act on the part of the complainant and an act of the accused.

17․Ms Jones SC also drew my attention to the decision of Barwick CJ in Ryan v The Queen [1967] HCA 2; 121 CLR 205 at 213, in which his Honour held: “that a crime cannot be committed except by an act or omission of or by the accused is axiomatic”. She contended that as it was the act of the complainant that resulted in sexual intercourse, rather than the act of the accused, the first element of Count 4 cannot be established.

Prosecution submissions

18․In reply, the prosecutor submitted that the accused was the driving force of the sexual intercourse which forms the physical element of Count 4. Specifically, the complainant’s evidence is that he directed and guided the complainant on top of him; and that he guided his penis toward the complainant’s vagina. The complainant stated that the accused “grabbed my waist and like rolled me on top of him and I – I suppose I didn’t resist really…”.

19․The prosecutor also submitted that the evidence of the complainant should be considered as a whole. In particular, the prosecutor noted that:

(a)Count 4 occurred immediately after Count 3, which was a charge for sexual intercourse without consent relating to an allegation of penile-vaginal sexual intercourse where the accused was on top of the complainant;

(b)Count 4 occurred immediately after the complainant told the accused she wanted to go to sleep and expressed pain at the alleged sexual intercourse relating to Count 3;

(c)In relation to Counts 3 and 4, the complainant’s evidence was that she felt “that if I didn’t do something I was doing something wrong”; and

(d)The complainant’s evidence was “categorical” that “from the time she left the club until the time they were in bed that she did not want sexual intercourse of any kind.”

Relevant principles in determining a ‘no case’ application

20․The principles to be applied when considering a ‘no case’ application are well-established. In May v O’Sullivan [1955] HCA 38; 92 CLR 654 at 657-658, Dixon CJ, Fullagar, Kitto and Taylor JJ held:

When, at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law.

22. In Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214 – 215, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated:

[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

See also LK v The Queen [2010] HCA 17; 241 CLR 177 at [29], per French CJ.

Consideration

21․In my view, the decision of the High Court in Burns is not apposite. That decision concerned an offence of manslaughter. In the passage cited, their Honours were discussing the element of causation in that offence. Causation is not an element of an offence of sexual intercourse without consent contrary to s 54 of the Crimes Act.

22․It is, of course, necessary that there be an act or omission of the accused. It is also well-established that this act or omission must be voluntary and intentional, as opposed to accidental: R v AJS (2005) 12 VR 563 at [25].

23․However, contrary to the accused’s submission, I do not accept that “sexual intercourse” as that term is used in s 54 of the Crimes Act is a binary proposition, which requires an inquiry to be made as to whether penetration resulted from ‘the act’ of the accused or the complainant. The definition of sexual intercourse in s 50 ultimately needs to be read in the context of the offence creating provision in s 54 of the Crimes Act, which requires that the accused “engage” in sexual intercourse. Of course, sexual intercourse is an activity in which two people may “engage”.

24․Consideration of whether the accused “engaged” in sexual intercourse requires an assessment of all of the circumstances in which the penetration occurred. In accordance with the decisions in May v O’Sullivan and Doney, when considering a ‘no case’ submission, it is necessary to consider the evidence in the prosecution case at its highest.

25․The evidence of the complainant is that the accused rolled the complainant on top of him and that he guided his penis with his hand into her vagina. Taking the evidence in the prosecution case at its highest, I am satisfied that the evidence is “capable” of supporting the first element of Count 4, namely that the accused engaged in sexual intercourse with the complainant.

Orders

26․For the above reasons, I made the following order:

(1)I refuse the Accused’s no case application in respect of Count 4, dated 21 July 2023.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A Bucci

Date: 28 July 2023