Hancock v The Queen

[2003] WASCA 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   HANCOCK -v- THE QUEEN [2003] WASCA 218

CORAM:   MALCOLM CJ

STEYTLER J
MCKECHNIE J

HEARD:   18 AUGUST 2003

DELIVERED          :   18 AUGUST 2003

PUBLISHED           :  19 SEPTEMBER 2003

FILE NO/S:   CCA 244 of 2002

BETWEEN:   SIMON PAUL HANCOCK

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Sexual offences - Directions as to consent - Whether miscarriage of justice - No new principle - Turns on own facts

Legislation:

Criminal Code (WA), s 24

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr R A Mazza

Respondent:     Mr R E Cock QC & Mr S F Rafferty

Solicitors:

Appellant:     Max Owens & Co

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Daniels v The Queen (1989) 1 WAR 435

Honeybone v The Queen, unreported; CCA SCt of WA; Library No 950224; 10 May 1995

Middleton v The Queen (1998) 19 WAR 179

Nominal Defendants v Clements (1960) 104 CLR 476

R v Callaghan (1993) 70 A Crim R 350

R v Lars (1994) 73 A Crim R 91

R v Schmahl [1965] VR 745

R v Soma [2003] HCA 13

R v Veverka (1978) 1 NSWLR 478

Willis v The Queen [2001] 25 WAR 217

1. JUDGMENT OF THE COURT:  At the conclusion of the hearing on 18 August 2003, the Court announced that the appeal would be dismissed and reasons would be published in due course.

2. The appellant was charged that on 11 August 2001 at Busselton, he sexually penetrated the complainant without her consent.  He pleaded not guilty and was convicted after a two day trial before Groves DCJ and a jury on 17 and 18 December 2002.

3. In very brief terms the prosecution case was that the complainant, aged 25, met the appellant's wife at a hotel in Busselton on the evening of 10 August 2001.  The complainant was intoxicated.  Eventually, with a group of other people, she went back to the house where the appellant and his wife lived.  At around 3 am the complainant fell asleep on the couch.  The prosecution case was that she later awoke on the couch with the accused having sexual intercourse with her.  She did not consent to this.  After a while the appellant ceased the act of sexual intercourse, got up, and walked into another room.  The complainant found that her clothing was disarranged.  She rang a friend, who was an off‑duty police officer and who, in fact, was also sleeping in the appellant's house.  The police were contacted and arrived at the appellant's house around 6.30 am.  The appellant subsequently made a video record of interview.  In that interview, confirmed by his evidence at trial, the appellant said that he was in bed with his wife when the complainant woke him and asked him to join her in the lounge room.  They then engaged in an act of consensual intercourse.  In his words "She was definitely a willing partner and I don't have any doubt in my mind that she was a willing partner."

4. At the commencement of the trial, counsel for the appellant made admissions on behalf of his client that the appellant sexually penetrated the complainant, stating that he did not have sexual intercourse without her consent.

5. The appellant advances two grounds of appeal, which to an extent overlap.  They are:

   "2.The Learned Judge erred in law or in law and fact in that after being advised that the Appellant's defence was that there was consent, or that if there was not the Appellant operated under a Section 24 mistake as to consent; he effectively directed the Jury only as to a Section 24 defence and did not explain to the Jury or failed to explain adequately to the Jury that the first issue they had to decide was whether they were satisfied that there was no consent.

   …

   4.(a)      The Learned Judge failed to adequately explain to the Jury the Appellant's defence and factual basis for it;"

6. The essence of the submission on behalf of the appellant is that on a reading of the trial Judge's charge, as a whole, he put the defence case to the jury on the basis that the defence was that the appellant had honestly and reasonably, but mistakenly, believed that the complainant was consenting to sexual intercourse with him, thereby relying on s 24 of the Criminal Code.  In fact the appellant's case was primarily that the complainant had consented to sexual intercourse.

7. It is argued that the Judge's directions were confusing, blurring at times the difference between consent and an honest and reasonable but mistaken belief in consent.

8. It is true that the trial Judge, in the course of his directions, placed some emphasis upon a defence of honest and reasonable but mistaken belief when the real question for the jury was that of whether or not consent was in fact given.  If the jury accepted, beyond reasonable doubt, the version offered by the complainant, a conviction was inevitable.  If, on the other hand, they accepted the entirely different evidence of the appellant, or were not satisfied beyond reasonable doubt as to its untruth, an acquittal was inevitable and there was no real scope, on either version, for any issue of honest and reasonable but mistaken belief regarding the issue of consent.

9. However, we find ourselves unable to accept that this should have led to any confusion on the part of the jury with regard to their decision on the issue whether or not consent was in fact given.

10. In the course of his summing up, his Honour told the jury that:

    "The issue, as you well know now in this trial, relates to the words 'without her consent' and that's the matter which, members of the jury, you will consider when you go to the jury room.

    Has the crown satisfied you beyond reasonable doubt that the sexual intercourse which took place was without the consent of... [the complainant]?"

11. His Honour went on to refer to the Code definition of "consent" before saying:

    "You must consider the whole of the evidence and the surrounding circumstances and determine, as I have said, the facts to enable you to do that to decide whether or not there was consent given to sexual intercourse."

12. His Honour then further discussed the law in this respect before saying:

    "It's as much as you can do to look at all the surrounding circumstances and having regard to those circumstances deduce or come to the conclusion that consent was either given or consent was not given."

13. His Honour also made plain to the jury that the issue of mistake only arose if the jury decided that the complainant did not consent.  He said:

    "Even if you decide that the complainant did not consent, that's not the end of the matter.  It's not the end of the matter because you must then consider whether the accused had an honest and reasonable but mistaken belief that the complainant consented."

14. His Honour then went on to explore the law in this latter respect, before saying:

    "In the first place if on all the evidence you are satisfied beyond reasonable doubt of the guilt of the accused, then it's your duty to convict him.

    Secondly, if you believe the accused was telling the truth, then of course you must acquit him.  Thirdly, if you were left with a reasonable doubt that there is a reasonable possibility the accused may be telling the truth, then you must acquit the accused."

15. In all of these circumstances, it seems to us that even if some confusion were introduced by the introduction of the notion of honest and reasonable but mistaken belief in consent, this could have caused no prejudice to the appellant. It must have been abundantly plain to the jury that the real issue in the case was that of whether or not consent was given and that if they were left with a reasonable doubt on that score they had to acquit the appellant. Having regard for what was said to the jury by the trial Judge, they must have understood that they should only consider the defence arising under s 24 of the Criminal Code if they were satisfied, beyond reasonable doubt, that there had, in fact, been no consent.  Any confusion in that respect could consequently not have affected the appellant's defence on the issue of consent.

16. It is not suggested that the trial Judge's directions on the onus and standard of proof were deficient.  The way in which issues were joined at trial, coupled with the Judge's directions as to the law, does not give rise to any error or miscarriage of justice.

17. It is for these reasons that the appeal was dismissed.