G B D v The Queen
[2011] VSCA 437
•16 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0979
| GBD | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY, HARPER JJA and ROSS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 October 2011 | |
DATE OF JUDGMENT: | 16 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 437 | |
JUDGMENT APPEALED FROM: | The Queen v [GBD] (Unreported, County Court of Victoria, Judge Wilmoth, 18 December 2009) | |
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CRIMINAL LAW – Conviction – Two counts of rape – Complainants aged 13 and 14 years of age – Complainants provided with alcohol and injected with drugs – Consent – Whether trial judge erred by directing the jury that the offender could be convicted of rape even if he believed that the complainant was consenting – Worsnop v The Queen [2010] VSCA 188 discussed – Appeal against conviction allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Glynn | Galbally & O’Bryan Lawyers |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I agree with Harper JA, whose reasons I have had the advantage of reading in draft, that the appellant’s conviction on count 19 must be set aside. Consent and belief in consent were in issue, and a Worsnop[1] misdirection was unfortunately, but blamelessly, given.
[1](2010) 28 VR 187.
Concerning count 24, I agree with his Honour that, in the way which he describes, consent and belief in consent became live issues, that there was a Worsnop misdirection, and that the conviction must be set aside.
I further agree with his Honour that it would be inappropriate to enter a conviction on the alternative count 25. On the evidence adduced, a properly instructed jury might have returned a guilty verdict on count 24.
It is implicit in what I have thus far said, but I should make clear my conclusion, that the appellant’s convictions on counts 19 and 24 could not be saved by recourse to the proviso to s 568(1) of the Crimes Act 1958. Whilst penetration was not in issue in respect of count 19, and whilst it is clear, respecting count 24, that the jury accepted CKL’s evidence that penetration occurred, the misdirection concerning belief in consent was in each instance potentially very significant. Having considered all the pertinent evidence, I am not satisfied the appellant was proved beyond reasonable doubt to be guilty on either count.
HARPER JA:
Following a trial in the County Court which was held over some weeks in September 2009 and the following month, the appellant (‘GBD’) – one of two accused then standing trial on a 32 count presentment – was convicted of two counts of rape (counts 19 and 24). He was acquitted on five other charges, one of which (count 25) was a statutory alternative to count 24. The maximum penalty for rape is
25 years’ imprisonment.
The appellant was, on 18 December 2009, sentenced to six years’ imprisonment on each count. The judge ordered that 12 months of the sentence on count 24 be served cumulatively upon the sentence imposed on count 19. The result was a total effective sentence of seven years’ imprisonment. Her Honour ordered that the appellant serve a minimum period of four years’ imprisonment before becoming eligible for parole.
Another offender, ’Y’, was involved. The trial judge sentenced him to a total effective sentence of 15 years’ imprisonment, and fixed a period of 11 years before he became eligible for parole. He had been found guilty on 18 counts, including nine separate counts of rape. For each of the rapes, the other offender was sentenced to six years’ imprisonment.
The appellant sought leave to appeal against both conviction and sentence. Two grounds were put forward in each case. Ashley JA, however, allowed the application for leave to appeal against conviction only on the ground that the trial judge erred by directing the jury that the appellant could be convicted of rape even if he believed that the complainant was consenting; and his Honour allowed the application for leave to appeal against sentence only on the ground that the judge erred ‘by imposing the same individual sentences on the various rape counts on both the [appellant] and the co-accused.’
The evening which formed the background to the imposition of these penalties, 13 December 2008, was the occasion of behaviour by the appellant (then aged 41) and Y (who was 32 years of age) which touched the depths of depravity. During the course of it, Y abandoned any concept of decency he might otherwise have had. The appellant was some distance behind; but his conduct was nevertheless such that nobody with any sense of responsibility to others would have engaged in it. The conduct of both men was abhorrent to all notions of civilised behaviour.
It began at the Caulfield railway station. Y happened to be there. So were the two complainants. One of the two (‘MSG’) was then 14 years of age. The other (‘CKL’), who later stated that, before the events of that evening, she was a virgin, was 13. Having already consumed some alcohol, the pair approached Y, a stranger, with a request for a cigarette. His reaction was to offer them not only tobacco, but also methylamphetamine (‘speed’). They accepted. Thus began a series of events which included: a visit to a drug dealer, from whom speed was obtained; the insertion by MSG – at the co-offender’s request - of the drugs into her vagina so as to hide them from nearby police; the ingestion of this drug through a ‘crack pipe’; a visit to a sex shop, where the girls were asked by the staff to leave because they were not old enough to be there; and a train journey to Cranbourne, during which the complainants, having already indulged in drug taking, consumed more alcohol.
The appellant, who was at his home in Cranbourne, received a telephone call from Y while this was occurring. As a result, he and Y arranged for the latter to visit him ‘with a couple of chicks’. They had told Y that they were, respectively, 16 (MSG) and 15 (CKL). He told them that he was 22. He also instructed them to pretend that they were 18. This did not work at the sex shop, where the girls were asked to leave because they were, in the staff’s assessment, too young.
The appellant claimed in a record of interview that he asked the complainants how old they were. He told the police that he thought they were at least 18, and that one of them told him that that was her age. In her reasons for sentence, the judge observed that ‘it would appear that the jury rejected that evidence.’[2]
[2]Reasons for sentence, [7].
On their arrival, the appellant and Y discussed additional drug use. Indeed, according to the appellant when giving answers to questions put to him by the police during a police interview, the complainants had themselves referred to this topic, and to their further consumption of speed. Some time after this discussion, the complainants and Y resorted to the appellant’s laundry, where, according to the evidence of each complainant, Y injected each with drugs. In preparation for that episode, on the Crown case, Y asked the appellant for a needle, which the appellant supplied and which Y then used on the complainants.
Following the visit to the laundry, Y took the girls to a caravan in the appellant’s back yard. He there subjected them to horrific sexual exploitation.
The appellant did not join them immediately. In her reasons for sentence, the judge described his arrival at the scene:
Count 19 occurred when [GBD] came into the caravan. The evidence was, and this is not in dispute, that he knocked on the door and said he was not happy, and [Y] invited him in saying the girls wanted him. [GBD] then penetrated [MSG’s] vagina with his fingers.
Count 24 is a count of penile/vaginal rape of [CKL]. He went over to her and rubbed her genitals and then put his penis in her vagina. This was a brief episode and he did not ejaculate and stopped when she complained.
The appellant maintained that his insertion of his fingers into MSG’s vagina was consensual. The jury did not believe him. He denied any sexual penetration of the other complainant (CKL), but again was not believed. He was, on the count which related to this accusation, (count 24) convicted of penile/vaginal rape. And, as I discuss later in this judgment, her Honour’s description of the appellant as stopping ‘when she complained’ did not coincide with CKL’s description of the incident as given in her VATE interview, although it was compatible with evidence which she gave orally.
Consent was an issue at the trial in relation to count 19. On 13 October 2009, in her Honour’s charge to the members of the jury, the trial judge instructed them in accordance with the model charge then propounded by the charge book maintained by the Judicial College of Victoria. Her Honour said:
Evidence of [GBD’s] belief and consent must be taken into account by you when determining whether the prosecution has proved beyond reasonable doubt that he was aware that [MSG] was not or might not be consenting or had given any thought to the possibility that she might not be consenting. Even if you find [GBD] did have such a belief you will still need to decide [whether] the prosecution has proved this fourth element. You might find that he believed [MSG] was consenting but might still be satisfied beyond reasonable doubt that he was aware of the possibility that [MSG] was not consenting. In that case, the fourth element would be met. If upon considering all of the evidence you find that the prosecution has proven beyond reasonable doubt that[GBD] was aware that [MSG] was not, or might not be, consenting, or was giving no thought to whether or not she was consenting, then this fourth element will be met.
On 28 July 2010, this Court gave judgment in the case of Worsnop v The Queen.[3] It was then held that the charge book incorporated a mistaken view of the law as it has been since the insertion in 2007 of a new section, s 37AA, into the Crimes Act 1958. That section, the Court held, did not have the effect asserted by the accompanying explanatory memorandum and incorporated into the charge book. It did not, as the explanatory memorandum suggested, change well settled law. The law remained that, once a jury accepts the existence of a belief in consent, the Crown cannot establish either that the accused was aware that the victim was not consenting or else that the victim might not be consenting.
[3][2010] VSCA 188.
On the application for leave to appeal, counsel for the Crown conceded that the judge, in light of Worsnop, had misdirected the jury. Very shortly before the appeal came on for hearing, different counsel for the Crown foreshadowed an application to withdraw the concession and argue that Worsnop had been wrongly decided. After hearing argument, the Court refused the application.
In these circumstances, the true question for the jury on count 19 was whether the prosecution had discharged the burden of proving beyond reasonable doubt that the appellant did not believe that MSG was consenting. Instead they were told that, even if he believed that she was consenting, nevertheless he could be convicted if the Crown proved beyond reasonable doubt that he was aware of the possibility that his belief might be misplaced.
In my opinion, there is no room in these circumstances for the operation of the proviso. The question of consent was directly in issue on count 19. Had the jury been correctly instructed, they would have had to answer a very different question to that which was put before them by the trial judge. Their verdict does not carry with it the necessary implication that they would have returned the same verdict had they been told that the appellant was bound to be acquitted if he believed that MSG was consenting. Such a belief might – indeed, almost certainly would – have been assessed by the jury as being unreasonable; but, consistently with such a view, they might nevertheless have concluded that the prosecution had not proved beyond reasonable doubt that he did not hold it.
This in my opinion leaves the law in an unsatisfactory position. The evidence of lack of free consent is in this case very powerful, given the drugs to which the complainants had been inveigled into ingesting. Dr Morris Odell, a highly qualified forensic medical physician whose speciality is the effect of drugs on humans, told the jury that methylamphetamine and other amphetamine-based drugs:
... work by increasing the effects of [adrenaline] and the result of that is that people become very full of energy. They speed up, they do things at a thousand miles an hour, they think quickly, sometimes too quickly. They talk very quickly, they can ... get into a state where they’ll do things that they wouldn’t normally have done before because they don’t think about them too carefully, so they can take risks ... . People will ... engage in dangerous activity, including sexual activity, while they’re on them because their sense of caution ... and taking care of themselves might be adversely affected.
During her VATE interview, CKL gave her own dramatic account of the effect of methylamphetamine on her, after what she said was her first experience of the drug:
And then he [Y] did [MSG] first and it was hard to get her veins... . Mine [the injection administered by Y] was pretty easy in my right arm, just there, and then I felt all of a sudden really awake. My eyes, my pupils, had gotten really, really, big. I felt like I could almost fly, and then [MSG] got hit up as well, and ... [Y] hit up after [MSG]. We all felt very horny afterwards ... .
If MSG did consent, the likelihood that that consent was induced by the euphoria of drugs, but would otherwise have been absent, is very real. The jury might reasonably have concluded, that this was exactly what Y intended.
Section 36 of the Crimes Act 1958 provides that, for the purposes of those subdivisions of the Act which deal with rape and indecent assault, incest, sexual offences against children and sexual offences against persons with a cognitive impairment, consent means free agreement. Furthermore, the section goes on to provide that circumstances in which a person does not freely agree to an act include those in which the person is so affected by drugs as to be incapable of freely agreeing. Emphasis is given to the importance of these provisions by s 37A, which sets out the objects of the relevant subdivisions. These are (a) to uphold the fundamental right of every person to make decisions about his or her sexual behaviour, and to chose not to engage in sexual activity; and (b) to protect children, and those with cognitive impairments, from sexual exploitation.
Those objectives were trashed on 13 December 2008. That is strong language, but it is used deliberately. To groom two girls, a mere 14 and 13 years of age respectively, with alcohol and drugs, to then take them to a private home and, in the laundry of that house, inject them with more drugs, and then to indulge with them in a wide variety of sexual acts over an extended period, is exploitation of the worst kind. It is no excuse that they were thought to be a little older. They were strangers. The law should strongly discourage any adult in those circumstances from taking risks.
Y has been punished for his part in this affair. The gravity of the appellant’s misconduct was considerably less. On the other hand, the appellant knew something of the episode in the laundry, and either knew of the general nature of the activities being indulged in by Y, or deliberately shut his eyes to them. There being no evidence to the contrary, it was open to her Honour to find for sentencing purposes – indeed, the conclusion was inevitable – that he knew that the drugs were administered to the complainants for the purpose of inducing their consent to whatever acts, however gross, he and (more especially) his co-offender, were minded to subject them.
It was in these circumstances that he, on his own admission, digitally penetrated the vagina of one of the two victims. The jury might well have concluded that she did not give her free consent. Anyone with a normal capacity for insight would have known for a certainty that this was so. Even assuming that the appellant was not endowed with the usual capacities of humankind, and believed that she was consenting, he must have known that she might not be giving her free consent to that act; that was the point of what must have been significant expenditure on the acquisition of speed, and of her subsequently being injected, by the appellant’s friend and to the appellant’s knowledge, with methylamphetamine. Nevertheless, on the authority of Worsnop, the law cannot, so long as the Crown fails to prove the absence of his belief in her consent, convict him. Accordingly, the appeal must on this ground be allowed and the conviction on count 19 must be quashed. But, in my opinion, the gap in the law which was identified in Worsnop cries out for the remedial intervention of the legislature.
There remains the conviction on count 24. The evidence of CKL in chief, given during the course of her VATE interview, was very brief. In that interview, CKL said that, after spending some time in the caravan with Y, the appellant:
... came in and fingered [MSG] and had sex with me. I was saying ‘stop’ and it really hurt, and he went for about ten seconds more and then he stopped.
She also said that ‘[The appellant] started putting his dick up my vagina when I was in a dog position.’
This account was enlarged upon during the course of cross-examination. The following exchange occurred:
Q: Didn’t he leave the van and then come back a short time later, and say, ‘Look enough’s enough’ and then leave the van properly?
A: No, he came over to me and just started rubbing on my genitals and then put his penis inside me.
Q: [CKL], the truth of the matter is you’re not sure … that [the appellant] had any sexual activity with you, are you?
A: Yes, I am.
Q: What exactly do you say happened sexually between you and [the appellant]? You’ve said something about rubbing…?
A: He rubbed my genitals and stuck his penis inside me.
Q: Where exactly were you when that happened?
A: On the bed.
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Q: You’re on the bed?
A: Yes.
Q: [Y] is on the bed?
A: Yes.
Q: [MSG’s] on the bed?
A: Yes.
Q: And you say [the appellant] comes back to the bed?
A: Yes.
Q: So the four of you are on the bed?
A: Yes, but we’re not all lying down.
Q: What are you doing exactly?
A: I’m on my hands and knees facing towards the back wall of the big window and [the appellant] is standing up behind me … .
Q: But you say all this was happening with [Y] and [MSG] right next to you?
A: Yes it was.
….
Q: And do you say [the appellant] was wearing a condom or not?
A: No
Q: So he wasn’t wearing a condom?
A: No.
Q: Did he say … anything to you at that point?
A: Um, not that I can remember. I just remember physical activities.
QL: Are you sure you can remember this?
A: Yes I can.
Q: Well did you say anything at that point?
A: No I didn’t except I said ‘Ow’ and he stopped.
According to the account given by the appellant to the police, that incident never took place.
It is apparent that, respecting count 24, the principal issue joined was whether the incident occurred. So far as CKL was cross-examined, it was to suggest that the incident had not occurred, or that the offender was the other accused. The gist of the appellant’s record of interview was that the offence could not have occurred, because he could not get an erection. The further gist of his record of interview was that it did not occur because anything he did was in response to a request; and he gave no evidence of any request by CKL for penile intercourse.
In his final address, notwithstanding that the principal issue was whether or not there had been penetration, counsel for the appellant made the obvious and correct point that it remained for the Crown to prove all the elements of rape. He said this:
There is another layer of complication in this case on the issue of consent and that is because of Count 24 and that is the rape count which relates to [CKL]. Although of course [the appellant] says that none of the sexual activity alleged occurred with [CKL], even if you reject that and I'm not saying that you should reject [the appellant’s] account but even if you do and you say, ‘Well no I'm satisfied beyond reasonable doubt that there was penile vagina sex with[CKL] you still need to grapple with consent and the same arguments that I've just run through with you apply. I'm not going to go into detail about [CKL] because of course [the appellant’s] very firm defence is that that activity didn't happen.
Even if you are against us on that - even if you say ‘No, well look I'm satisfied beyond reasonable doubt that it did happen’ you still have to go through this intellectual exercise in terms of consent. Was she consenting? What did he think in that regard? I will say one thing though in relation to [CKL’s] account of the sexual activity with [the appellant] - she said … ‘When she said “Ow” he stopped’.[4]
[4]My emphasis.
Counsel’s reference to ‘the same arguments’ was a reference to his submissions about consent and belief in consent, which he had earlier addressed conjointly. They had been developed from a starting point that the appellant had been invited into the caravan where three naked people were engaging in a variety of sexual activity. Then, in answer to his question, MSG had told him that she was 18. According to counsel’s submission, the ‘messages and signals could not have been clearer … in terms of consent’. That bore upon the appellant’s ‘state of mind’
If a conviction on this count were to be obtained, the Crown was required to prove both want of consent and the appellant’s lack of belief in consent where those matters were in issue. And here they were in issue, not because the appellant made it so – his denial of any intercourse removed those defences from his positive armoury – but because CKL’s account was entirely consistent with the conclusion that, when penetration began and until it began to hurt, she was a consenting (as opposed to being a freely consenting) party. Then, on the account she gave in cross-examination, when she said ‘Ow’, the appellant withdrew. Consent having been made a live issue in the circumstances described, it is difficult to see why belief in consent did not in turn become a live issue.
Evidence which the jury might have concluded bespoke consent included:
(1) CKL’s evidence [in the VATE interview] that, when the appellant penetrated her, she was in ‘a dog position’. She said nothing to indicate that taking up that position was forced upon her, or even that the appellant had suggested it. It would be well open to conclude that it was her choice, and was a precursor to invited penetration.
(2) CKL’s evidence that – logically, it must have been before she assumed the dog position – the appellant had rubbed her genitals. She gave no evidence of complaining when he did so.
(3) CKL’s evidence that she knew, before the appellant penetrated her, that he was not wearing a condom. Either she knew that before she took up the dog position; or else, having assumed that position, she was looking behind her at the time. Either situation was suggestive of consent, perhaps particularly when CKL gave no evidence of saying that the appellant must not penetrate her, despite knowing that he was not wearing a condom.
(4) CKL’s evidence that she said nothing to the appellant before saying, after he had penetrated her, ‘ow’; and that when she said that, he withdrew. The judge did not explain to the jury how that might be relevant to the question of consent; or to the appellant’s belief in consent.
(5) CKL’s evidence as to the setting – see [31] above – in which she alleged that the offence was committed.
(6) The appellant’s record of interview, in which he graphically recounted the activities of the threesome when he first entered the caravan. True, that was earlier, but it arguably set the scene for what later followed.
It was doubtless for these reasons that her Honour directed the jury about consent, and belief in consent; and, naturally, she did so in the same terms as those she used when speaking of the incident which formed the basis of count 19.
The complaint made by ground 1 focuses on the Worsnop point, not misdirection as to consent. But the two are interconnected. The evidence led from CKL, which opened up the issue whether the complainant had consented, provided an obvious foundation for an inference, assuming penetration occurred, of belief in consent. Even if the jury was persuaded that CKL did not give free agreement, the inference that the appellant had a belief in consent was not unavailable. Indeed, CKL’s viva voce evidence that, when she said ‘ow’, the appellant withdrew, was consistent with him having believed that she was consenting up until the moment of her exclamation; and that, from his standpoint, the exclamation indicated withdrawal of consent, to which he forthwith responded.
In my opinion, for these reasons, the appeal in relation to count 24 must be allowed, and the conviction on that count quashed, for the same reasons as those
which apply to count 19.
Again, there is no room for the proviso. Nor would it be appropriate to enter a conviction on the alternative count 25 (sexual penetration of a child under 16). The appellant asserted in his record of interview that he believed the complainants to be 18 years old, and the victims did not suggest that they told him anything different.
Accordingly, the appeal against conviction must be allowed, and there must be a new trial.
ROSS AJA:
I have read the reasons for judgment of Harper JA in draft, and I respectfully agree with them.
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