K B v The Queen
[2013] VSCA 137
•23 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0149
| KB |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN, ASHLEY and PRIEST JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 May 2013 | |
DATE OF JUDGMENT: | 23 May 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 137 | |
JUDGMENT APPEALED FROM: | The Queen v [KB] (Unreported, County Court of Victoria, Judge Howie, Date of Sentence 1 June 2012) | |
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CRIMINAL LAW – Rape, indecent assault and recklessly causing injury – Whether trial judge made comments to the jury which had the effect of reversing the onus of proof – Whether the trial judge failed to relate the appellant’s marijuana use to the issue of his awareness that the complainant was not or might not be consenting – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Stanton | Robert Stary Lawyers (Melbourne) |
| For the Respondent | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will invite Priest JA to deliver the first judgment.
PRIEST JA:
Introduction
Almost nine years after the events leading to the convictions from which this appeal is brought, on 21 March 2012 a jury in the County Court found the appellant guilty of indecent assault (count 1), rape (count 3) and recklessly causing injury (as an alternative to intentionally causing injury, count 4). The appellant was acquitted of attempted rape (count 2) and intentionally causing injury (count 4).
Following a plea in mitigation, on 1 June 2012 the trial judge imposed a total effective sentence of five (5) years’ and three (3) months’ imprisonment, on which he fixed a non-parole period of three (3) years.
On 5 February 2013, Maxwell P granted leave to appeal against conviction on the following grounds:
1. The trial judge erred by stating to the jury various matters which individually or collectively had the effect of reversing the onus of proof.
2. The trial judge erred in failing to relate the appellant’s marijuana use to the issue of his awareness that the complainant was not consenting or might not be consenting.
In my opinion, for the reasons that follow, neither ground can be upheld. The appeal should thus be dismissed.
Overview
FE, then a young woman just turned 18 years, had a social gathering at her unit on 6 April 2003 during which she, the appellant and others, smoked marijuana. In the course of that evening, the appellant touched the complainant, FE, on her breast and had penile-vaginal sex with her.
Police interviewed the appellant on 9 April 2003. He was born 6 October 1977, so was 25 years of age at the time of the offending (and is now 35). On 11 June 2003 he left Australia, and did not return until shortly before 16 March 2009, when he surrendered himself to police.
In essence, the prosecution case was that FE did not consent to the appellant touching her on the breast or having penile-vaginal intercourse with her. She had been dragged to the floor by her feet, injuring her lower back.
The defence case – at least as articulated by counsel in cross-examination and in his final address – was one of consent. FE had consented to her breast being touched, and had initially consented to sexual intercourse. When the complainant changed her mind during intercourse, and the appellant realised the complainant was no longer consenting, he desisted. According to the defence, FE later got it into her mind wrongly that she had been raped, or was embarrassed about having had sex with the appellant.
There were thus, as the judge directed the jury,[1] two principal issues in the trial – first, had the complainant consented to the touching of her breast and to penetration of her vagina by the appellant’s penis; and, if not, was the appellant aware that FE was not consenting or might not be consenting to sexual activity (or, perhaps to put it more correctly, had the prosecution proved lack of consent, and an awareness on the appellant’s part that FE was not consenting or might not be consenting)?
[1]Charge 328, 359.
Evidence in the trial
FE gave evidence that there had been perhaps eight people, including her and the appellant – whom she described as a ‘dealer’ in ‘weed’ – at her apartment on 6 April 2003 (which was the day after her birthday). She drank ‘orange vodka, it may have been UDL’ and ‘smoked maybe two small bongs’ of marijuana, although she ‘didn’t feel stoned or drunk’. She ‘definitely’ had her senses about her. After the others had left, she and the appellant were alone watching ’60 Minutes’ on television. The appellant started rubbing up and down on her shoulder. He asked, ‘Can I kiss you?’, and she replied, ‘No, I am sick’. He started ‘groping’ her, ‘was very pushy’, and was trying to kiss her while at the same time was trying to get his hands inside her jacket top to feel her ‘boobs’. Eventually he put one hand inside her top onto her bare breast. She pushed him off with her hands and told him continuously, ‘No, stop … No, I don’t want to kiss you’. She said to him, ‘Don’t you know what “no” means?’ and was pushing him. The appellant pulled FE’s singlet top down and was sucking on her nipple. After he stood up so did she, and she yelled at him, ‘Go home’. He grabbed her and she screamed ‘at the top of [her] lungs’. He covered her mouth with his hand and said, ‘Don’t scream, don’t scream’. She tried to run, but he grabbed her. She was struggling, hitting, pushing and kicking him. The appellant got her onto the floor, held her down while trying to stop her from screaming. He put his hands around her throat and she could not breathe. He pulled down her tracksuit pants and knickers, but could not take them all the way off. The appellant unzipped his pants and tried to penetrate her vagina with his penis. He was unable to do so because she was ‘struggling too much’. FE continued to struggle, scream and kick, until she could scream no more because she was strangled so much. The appellant then dragged her by the feet and she started screaming again, screaming at him, ‘I hate you’. One of her shoes came off. He then managed to penetrate her and put his penis in her vagina ‘[m]ultiple times’ while she screamed ‘I hate you’ repeatedly. Fearing he would kill her, she said, ‘If you stop and just leave I won’t tell anyone’. The appellant then stopped, did up his fly and walked out the back door. FE then went to a neighbour Jodie’s residence and complained that she had been raped. Police were called, and they took the complainant for a forensic medical examination.
Jodie Duncan was in the bath on 6 April 2003 when she heard banging on her door. She opened it and FE was there ‘in hysterics and very disturbed’. After five minutes she could speak and said ‘I was raped’ by a ‘guy named [KB]’. The complainant had red marks on the side of her neck, and the complainant told her that she was choked as she was raped. The complainant said that she was on the floor in the lounge room, that the appellant had tried to kiss her and she said ‘no’ because she was too sick, and that he then had put his hands down her top and she had said, ‘No. Don’t you know what no means?. He then raped her.
Heidi Paynter had left FE’s when the appellant was still there. At about 7 o’clock Katherine Cunningham came to Ms Paynter’s unit. Ms Paynter then went to Ms Cunningham’s unit to see the complainant there. The complainant was upset and said she had been raped.
Katherine Cunningham gave evidence that as she was leaving a pay phone in the street outside the unit she saw the appellant, ‘[KB]’, running along the street. He ran to his car in front of the pay phone. He got into his car, reversed out of the court ‘hysterically’ and drove off ‘pretty quickly’, without putting his lights on until he turned a corner. She returned to her unit and saw the complainant in Ms Duncan’s doorway ‘upset’ and ‘hysterical’. Ms Cunningham observed that the complainant ‘had red marks around her neck’. It ‘looked like she’d been held with force around her neck’. FE said that, ‘[KB] was choking her … as he was raping her’. She said that [KB] had tried to kiss her and she said ‘no’ because she was sick, and then he put his hands down her top, and she said ‘No, don’t you know what “no” means?’, and then he raped her.
Michaela Marginean was a Forensics Medical Registrar who examined the complainant at 11.30pm on 6 April 2003. FE said that she had drunk half a can of vodka with orange and had smoked marijuana prior to the assault (which she described). A complete physical examination was done which ‘showed no signs of recent injuries’. Swabs for the purposes of forensic examination were also taken.
Deanne Williams was a Detective Senior Constable with the Frankston Criminal Investigation Unit. On 9 April 2003 she conducted a Record of Interview with the appellant. The appellant left Australia on 11 June 2003. He wrote a letter (Exhibit D) suggesting that he had been set up and was leaving the country. In the Record of Interview (Exhibit B), which was played to the jury – and which I will later set out in greater detail – the appellant initially could not explain what had happened, but said ‘something bad happened’. The complainant had said ‘no’ when he asked to kiss her. She had smiled. There was no struggle, he went blank and the next thing he recalled was being on the floor on top of her, having sex with her. It ‘must have been from the cannabis’, but he was ‘numb’ like coming out of an anaesthetic. She looked ‘freaky’ and scared. He panicked and walked out. As to touching the complainant’s breast, the appellant said he did not remember doing it and was ‘blank’. He did not remember thrusting into the complainant’s vagina, he could not feel anything because he was ‘numb’, but he could remember ‘doing movement’ between the complainant’s legs.
Exhibit E was an ‘Admission of Fact’ pursuant to s 184 of the Evidence Act2008, in which the appellant admitted that he was the source of spermatozoa detected on a vaginal swab, and of DNA material detected on a swab from the right breast, collected by Dr Michaela Marginean when she examined the complainant on 6 April 2003. He also admitted that on a date prior to 11 June 2003, without the knowledge of his brother, he organised airline travel tickets, and a current passport in his brother’s name but with his photograph; and that on 11 June 2003 he left Australia on Thai Airlines flight TG 982 to Bangkok, Thailand, later returning to Australia and attending Frankston Police Station on 16 March 2009 where he surrendered himself to police.
No evidence was called by the defence.
Reversal of the onus of proof – ground 1
In my view, when regard is had to the Charge as a whole, the trial judge impressed upon the jury sufficiently that the prosecution bore the burden of proof to the criminal standard, that the appellant was presumed to be innocent until proven otherwise and that the jury’s task was not simply to prefer one version of events over another.
There were arguably two differing accounts of the same course of conduct, one sworn to by FE in her evidence, and the other contained in the appellant’s Record of Interview with police. It was incumbent on the trial judge to bring to the jury’s attention both versions of events, subject to ensuring that the jury understood that the appellant bore no onus of disproof; and subject also to the jury understanding that even if they rejected the appellant’s version of events, they still needed to be satisfied of guilt on all of the evidence. This the judge did.
Thus at different places in the Charge the judge gave the following directions:[2]
[Y]ou are the judges of the facts. The onus of proof, it is, as you will see on your copy of the charges, you will see that it is the Director of Public Prosecutions who presents that [the appellant] has committed these offences … So it is the prosecution who [has] charged him with the offences. The prosecution has the onus or the responsibility to prove the charges. The accused man … does not have to prove that he is innocent. As a matter of law, he is presumed to be innocent unless and until the prosecution discharges the burden it has to prove his guilt. This is an important principle to understand and to apply in every case. A person charged with a criminal offence does not have to prove that he or she is innocent.[3]
…
I need to tell you that as a matter of law your task is not simply a matter of choice between those two different versions, if you are satisfied there are different versions and decide which one you prefer. If is going back to that basic principle that I have told you about that at all times the onus of proof rests on the prosecution so you do not approach your task by asking which version I prefer. But you ask, ‘Has the prosecution proved the essential elements of each of the offences beyond reasonable doubt?’
That means that even if you prefer the evidence of the prosecution you must not return a verdict of guilty unless you are satisfied beyond reasonable doubt of the truth and accuracy of that version. It also means that if you do not positively believe the accused’s version of events you should not find him guilty unless you are satisfied that the prosecution has proved each element of the offences beyond reasonable doubt.[4]
…
I remind you that the prosecution carries the onus of proof, and that an accused person is presumed to be innocent unless and until the prosecution satisfies you beyond reasonable doubt of his guilt.[5]
[2]Emphasis added.
[3]Charge 329–30.
[4]Ibid 337.
[5]Ibid 378–9.
Save for one passage, in my opinion none of the directions isolated in the first ground of appeal betray error. The one exception is the following:
As I have said to you, the law defines consent as meaning free agreement. You have [FE’s] evidence about what occurred. You have what [KB] has said in some of the answers that he gave in the interview. And what has been put to you is that what he is saying in that interview is … that when he attempted to kiss her, she said no, that after that, there was ‘quietness’ was the word that he used. And that later, when he was involved in having sex with her, she said no and he stopped.
If you accept his evidence about that, what he said about that, there are some directions that I need to give you, and that you need to consider.[6] …
What then followed were directions about consent and what the law regarded as not being ‘free agreement’.
[6]Ibid 365. See also 366.
Strictly it was wrong to tell the jury to consider the directions on consent if the jury ‘accepted’ the appellant’s ‘evidence’ (the reference to ‘evidence’ being, of course, to his interview with police).[7] The jury did not have to accept anything that the appellant said. They were required to look at all the evidence that bore on consent, and the appellant’s belief as to consent, and determine whether the prosecution had satisfied them beyond reasonable doubt that the appellant knew or believed that FE was not consenting to sexual activity. Moreover, without further elaboration it was potentially misleading on the rape count to draw attention to the fact that the appellant ceased ‘having sex’ when the complainant said ‘no’ (the prosecution case not being founded on a failure to withdraw), unless it was explained that such cessation might bear on the appellant’s state of mind at the time of penetration.
[7]Liberato v The Queen (1985) 159 CLR 507, 515. Compare Murray v The Queen (2002) 211 CLR 193, 201-2 [23], 212-3 [57].
These infelicities are, however, of not much moment. The repeated directions on the burden and standard of proof, the presumption of innocence and the absence of any onus of disproof on the defence, lead me to the view that the jury would not have been misled by the passage referred to. Since they fell amid abundant and of oft-repeated correct directions, the errors identified cannot fairly be described as so fundamental as to go to the root of the trial, or be regarded as such as to have led to the appellant losing a chance of acquittal fairly open. As I will explain later, in my opinion conviction was inevitable. Thus the impugned directions – although in error - cannot have been the source of any substantial miscarriage of justice.
Ground 1 has not been made out.
Marijuana use and appreciation of non-consent – ground 2
The evidence of the appellant’s marijuana use – and more importantly, its effects on him at the time of the relevant events – was thin.
FE gave evidence that she had smoked ‘two small bongs’ or ‘cones’, being two amounts of marijuana smoked from a water pipe. In cross-examination she denied being significantly affected. Although she said ‘[KB]’ also smoked marijuana – ‘because he was the one who got it’ – she did not assay a quantity.
Of others in the unit, Ms Paynter could not remember if anyone smoke marijuana, but Laura Stark could remember [KB] smoking a bong, observing that ‘[h]e brought drugs to the house’. The only passage of evidence from any witness which seemingly bears on the effects of drugs on the appellant is the following question of the prosecutor to Ms Stark and her answer:[8]
After the bong had been smoked, that is [KB] had smoked the bong did you observe any difference in his behaviour or did he seem to be his usual self, or what?---I remember he spoke a lot. Yeah, he just rambled, to be honest. The - the war was going on at the time with Iraq and he was telling us his point of view on the war.
Hence it is fair to say that there was evidence that the appellant may have become more garrulous, and his discourse more lengthy and digressive, as a result of his ingestion of marijuana. But there was no evidence of observation by those present that he appeared to be out of touch with reality, or that his perception of what was going on around him was diminished.
[8]T 241.
It is also fair to say that the Record of Interview did not contain a wholly coherent or consistent narrative of the crucial events. Because of its importance in the trial and on the appeal, however, it is necessary that I set out portions of it in moderate detail.
In the interview the appellant told police that from the time he arrived at the complainant’s unit at 3.00 pm he smoked three or four ‘cones’ of cannabis. He said he did not normally smoke cannabis, and he said he felt, ‘Well, really relaxed. Like, I couldn’t move properly’. After smoking, those assembled were ‘laughing, joking around’. Later, when they were alone, FE told him she did not want him to kiss her, but he looked her ‘straight in the face’ and ‘she was smiling kind of thing’. After that he ‘just went blank’. He found himself on top of the complainant wet and ‘gooey’; he looked at her and at himself and he ‘just panicked’. At that stage his body was ‘numb’, ‘he couldn’t feel it’ and he ‘didn’t have any sensation’. He later described it ‘like an anaesthetic kind of thing – kind of effect … it must have been from the cannabis’. Having drunk alcohol the night before he was also ‘seedy’. At one point he remembered having his thumb ‘on her neck’. He found himself ‘having sex with her’. When asked whether he had his penis in FE’s vagina he said that was the point he was ‘trying to figure out’, saying, ‘You know, I was so numb from here down that … I didn’t know what I was doing’. He was ‘not 100 per cent sure’ that he had intercourse with FE, but before he got off her she looked at him ‘really freaky’, which he described as like ‘panicky … kind of expression’. The appellant said he could not remember if he touched or sucked the complainant’s breast, or whether he had his hand over her nose and mouth having prevented her from running out the door, but he would not have said, ‘Don’t scream’. He told police that he could not remember pulling down FE’s underwear and tracksuit pants, or trying to put his penis into her vagina, but he remembered being on top of her doing a thrusting movement in between her legs. Further, he remembered her saying at the end that she would not tell anyone if he stopped and left. He thought that her ‘freaky face’ was ‘like fear’, but he ‘wasn’t thinking’, being ‘blank … no thought’. Ultimately, he agreed that he had sex with the complainant, that her face was alright at the start, but that ‘during the end’ it was scared. When asked whether he thought that FE was ‘happy’ about having sex with him, the appellant said he actually did not know, because he was ‘at the point where [he] could see but [he] could not hear much’; but she did not look like she was enjoying herself.
The appellant’s counsel argued that there was evidence of the appellant’s drug use which bore on his appreciation of whether the complainant was not consenting, or might not be consenting, to sexual activity (relevant to the convictions on both counts 1 and 3). Counsel relied on the answers in the Record of Interview when the appellant claimed that he his thoughts were away, and he was not thinking whether he was ‘doing the right and wrong thing’; he was ‘just blank’ because he ‘wasn’t thinking’; and he was ‘under the influence’ and ‘just panicked’. Attention was also drawn to certain answers given by Dr Marginean in cross-examination where she agreed that marijuana was a psychoactive drug, which can disrupt memory and result in elevated mood (although I note that there was no cross-examination designed to elicit that marijuana use might obscure a person’s perceptions relevant to an awareness of non-consent).
When charging the jury, the trial judge did not distinctly direct the jury on the significance – if any – of the evidence of the appellant’s marijuana use on the issue of his appreciation of consent. Having referred to an argument that FE’s marijuana use made her an unreliable witness, the judge turned to the evidence of the appellant’s connection with marijuana. He instructed the jury as follows:[9]
There is also evidence given, I think, perhaps only by [FE] that the accused was a dealer in marijuana. That evidence forms no part of the prosecution case. On the prosecution case it is irrelevant, and you should treat it as being irrelevant. You should have no regard to it. There is also evidence that [KB] was a user of marijuana and was smoking it on 6 April. That is part of the narrative about the day, including his own account. You may or may not have opinions about marijuana use, it is not the subject of any charge.
If you consider that to be misconduct, you should not reason that because he engaged in that sort of conduct he is the kind of person who would have committed the offences with which he is charged. It is really irrelevant to the charges, except for what you know, what you have heard in terms of the evidence as to any effect that it may have had upon him. So each charge must be considered separately, having regard only to the evidence which applies to that charge.
[9]Charge 375 (emphasis added).
Defence counsel took an exception. He submitted that the Record of Interview clearly raised the issue of ‘substantial marijuana use’ which bore on the appellant’s ‘awareness of consenting or might not be consenting’. When looking at the appellant’s state of mind it was open, he submitted, that the appellant ‘has either suffered a blackout or at the very least something of a dulling of his senses by reason of that marijuana use’.
Notwithstanding the exception, however, the judge did not give any further directions on the relevance of the appellant’s marijuana use.
The appellant’s counsel submits that s 37AA(b)(iii)[10] of the Crimes Act 1958 (‘the Act’) required that a direction be given to the jury as to the appellant’s marijuana use and its possible effect on his appreciation of lack of consent.
[10]Although s 37AA was introduced into the Act by s 4 of the Crimes Amendment (Rape) Act 2006 from 28 November 2007, by virtue of s 609 of the Act it applies to any trial that commences on or after the commencement of the amending Act, irrespective of when the offence to which the trial relates is alleged to have been committed.
Consent was an issue with respect to the charge indecent assault (count 1), attempted rape (count 2, on which the appellant was acquitted) and rape (count 3).
By s 38(2) of the Act as it applied at the time of the alleged offences, a person committed rape if he or she sexually penetrated another person without that person’s consent, while being aware that the person was not consenting or might not
be consenting.[11] Thus the trial judge left the charge of rape to the jury as one of sexual penetration without consent. Moreover, it was left as a case of penetration while the appellant was aware that FE was not consenting or might not be consenting.
[11]By virtue of the amendments to s 38(2) of the Act effected by s 5 of the Crimes Amendment (Rape) Act 2006, in its current form rape can also be committed by a person if he or she gives no thought as to whether a person is consenting or might not be consenting at the time of penetration; or if, after sexual penetration, he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting. The amendments were not retrospective: s 609(2) of the Act.
The meaning of consent is set out in s 36 of the Act. Essentially it means free agreement. Circumstances where a person does not freely agree are described. A variety of factors are set out, including where a person submits as a result of force or threat of force, or because of the fear of harm.
Section 37(1) requires a trial judge to direct on the matters in s 37AA – which bare on an accused person’s awareness of consent – if ‘relevant to the facts in issue in a proceeding’. By virtue of s 37(2), however, a judge must not give a jury a direction of the kind referred to in s 37AA ‘if the direction is not relevant to the facts in issue in the proceeding’.
Recently, in Getachew[12] the High Court considered the suite of provisions in the Act dealing with rape and the directions required with respect to consent. The Court[13] observed of s 37AA:[14]
[12]R v Getachew (2012) 286 ALR 196, 86 ALJR 397.
[13]French CJ, Hayne, Crennan, Keifel and Bell JJ.
[14]Ibid 202 (ALR), 403 (ALJR), [22] (emphasis in original).
The new s 37AA dealt with the relationship between an accused’s asserted belief that the complainant was consenting and the accused’s awareness that the complainant was not or might not be consenting. Section 37AA provided for the directions to be given to a jury ‘if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act’. In such a case a judge was obliged to give directions that the jury must consider certain matters ‘in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting’. The matters identified were ‘any evidence of that belief’[15] (namely, that the accused believed that the complainant was consenting to the sexual act) and ‘whether that belief was reasonable in all the relevant circumstances’[16] having regard to:
(i)in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and
(ii)whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
(iii) any other relevant matters.
[15]Section 37AA(a).
[16]Section 37AA(b).
And later:[17]
[21]For present purposes, there are two critical observations to make about s 37AA. First, the directions about awareness for which the section provided were to be given ‘if evidence is led or an assertion is made’ at the trial that the accused believed that the complainant was consenting. Second, s 37AA was expressed to be “[f]or the purposes of s 37”. Thus, s 37(1) required the giving of the directions s 37AA set out ‘[i]f relevant to the facts in issue in a proceeding’ – that is, if evidence was led or an assertion made of the identified kind – and s 37(2) prohibited the giving of a direction of the kind referred to in s 37AA ‘if the direction is not relevant to the facts in issue in the proceeding’ – that is, the criterion for engaging s 37AA was not met.
[22]It follows that an accused’s belief in consent is relevant at a trial for rape only ‘if evidence is led or an assertion is made’ that the accused did believe that the complainant was consenting to the sexual act. The reference to ‘an assertion’ being made is important. It would encompass the case in which an accused’s out of court statement (commonly in a record of interview with police) is tendered in evidence and contains an assertion that the accused believed that the complainant was consenting. And of course there are other ways in which the issue may be enlivened at trial, whether by evidence or by assertion.
[23]In considering any question about an accused’s asserted belief in consent it is necessary to keep at the forefront of consideration that s 38(2) prescribed the relevant mental element for the offence of rape as awareness that the complainant was not or might not be consenting or, after the 2007 Act, not giving any thought to whether the complainant was not or might not be consenting. Belief in consent is not the controlling concept. It is relevant only so far as it sheds light on the accused’s awareness that the complainant was not or might not be consenting.
[24]If evidence is led or an assertion is made that the accused believed that the complainant was consenting, the directions required by s 37AA would oblige the jury to consider whether the belief was reasonable (and any evidence of that belief). But neither s 37AA nor any other relevant provision of the Crimes Act provided that an accused must be taken to be aware that the complainant might not be consenting unless the accused reasonably believed that the complainant was consenting. Rather, consideration of whether an accused’s belief in consent was reasonable would bear upon whether the accused in fact held the belief.[18]
[25]It by no means follows from this last observation, however, that the relevant provisions of the Crimes Act are to be read as requiring the judge (in a case where no evidence has been led and no assertion made that the accused believed the complainant was consenting) to direct the jury that the prosecution must prove beyond reasonable doubt that the accused had no belief in consent. Rather, when s 37AA is read in the light of s 37, it is apparent that a jury is to be given directions about an accused’s belief in consent (and the bearing that this belief may have on awareness of the lack of consent) only if the possibility that the accused held such a belief has been raised at the trial (whether because evidence was led that the accused had such a belief or an assertion was made that the accused had such a belief).
[17](2012) 286 ALR 196, 86 ALJR 397, 202 (ALR), 403 (ALJR), [22] (emphasis in original).
[18]Compare Director of Public Prosecutions v Morgan [1976] AC 182; R v Flannery[1969] VR 31, 33–4; R v Saragozza[1984] VR 187, 193–6.
The jury were required to be given directions about the appellant’s belief in consent – and the bearing that this belief may have on awareness of the lack of consent – only if the possibility that the accused held such a belief has been raised at the trial, whether because the evidence (in this case the Record of Interview) suggested that the appellant had such a belief, or an assertion was made (in this case in counsel’s final address) that the accused had such a belief.
Defence counsel relied on ‘ten points’ in his final address, which in summary were as follows:[19]
[19]T 116–9.
1.first, ‘there were the real problems with the complainant’s version of events’ (including the lack of injuries and the like);
2.secondly, ‘the complainant has not told the real truth about [KB]’ (such as how they met);
3.thirdly, the ‘complainant has given the inconsistent accounts’ of the events (in particular, to Ms Cunningham and to Dr Marginean);
4.fourthly, ‘the complainant's version of events is simply not a reliable one’ (because of ‘this question of the marijuana and the drugs’);
5.fifthly, the ‘complainant has a reason why these allegations are made up against [KB]’ (including ‘maybe the complainant's come away with a belief, a wrong belief, you know, that she’s been taken advantage of here, reconstructed these events’);
6.sixthly, the appellant ‘provides an alternative version of events within his record of interview’;
7.seventhly, ‘how do the objective facts fit in with what [KB]?’;
8.eighthly, the jury should not ‘attach significant weight’ to complaint and her observed distress;
9.ninthly, submissions were mad why ‘consciousness of guilt and overseas flight’ should not be regarded as important; and
10.tenthly, submissions were made as to why individual charges were not made out.
It may thus be observed that the only argument in the counsel’s final address that might have raised a belief in consent was his sixth point – the appellant provided ‘an alternative version’ in his Record of Interview.
The judge directed the jury on consent:[20]
As has been clearly said to you, it is the issue of consent and the awareness of the accused that [FE] was not consenting or might not be consenting which are the issues in dispute in this trial. … [a] the prosecution must prove that [KB] was aware that she was not consenting, or might not be consenting, to each of those acts, as they relate to each of the charges. So this element concerns the state of mind of [KB].
[20]Charge 345–6.
Earlier I set out significant aspects of the appellant’s interview with police. In my opinion, however, neither is there any part of the Record of Interview where the appellant directly asserts a belief in FE’s consent to sexual activity, nor is there any part which by implication he raises such a belief. Thus belief in consent was not a fact in issue in the trial requiring a direction under s 37AA(b)(ii). By virtue of s 37(2) it would have been wrong of the judge to direct on it. The appellant nowhere claimed that his appreciation of whether the complainant was consenting was clouded by his ingestion of drugs. Rather, at best, the burden of his assertions to police was that as a result of cannabis use he was not thinking at the relevant time, and his memory had been affected. Had there been evidence that the appellant’s appreciation of facts relevant to the issue of the complainant’s consent, the trial judge would, of course, have been required to direct on the issue.[21] The evidence was, however, lacking.
[21]Bedi v The Queen (1993) 61 SASR 269, 273; R v Baltensperger (2004) 90 SASR 129, 141-2 [44]; Khan v R [2011] VSCA 286, [86]-[87]; NJ v R [2012] VSCA 256, [18]–[19].
For these reasons, in my opinion the trial judge was not required to give any directions on the topic of the appellant’s belief beyond those that he did.
Moreover, I am firmly of the view that a direction which drew the jury’s attention to the evidence – or perhaps the paucity of evidence – which bore on the appellant’s belief in consent would not have advanced the appellant’s case. Indeed, as was observed in argument, it would have been catastrophic. The judge would have been constrained to point to the evidence which supported a possible belief in consent (which was sorely lacking), which necessarily would then have been contrasted with evidence pointing in the other direction (which was plentiful).
Even if I am wrong about the need for a direction, in my opinion there has been no substantial miscarriage of justice.[22] Conviction was, in my view, inevitable. There was little to impinge upon the credit and reliability of FE other than her marijuana use, which, on the evidence, was moderate and had no effect upon her. (I doubt that any modern jury would have thought that marijuana use by a young person would bear materially on character.) I think there is little in the supposed inconsistencies pressed by the appellant’s counsel. Moreover, FE made an immediate and unambiguous complaint that she had been raped, accompanied by observed distress. Her suggested motives for making a false complaint were wholly unconvincing. Significantly, the evidence demonstrated that the appellant fled the scene and, shortly after being interviewed, fled the country, leaving behind a letter containing the risible claim that he had been ‘set up’. Such evidence as there was as to the effects of marijuana on the appellant were exceedingly thin, and evidence that he had a belief in the complainant’s consent – bearing in mind, of course, that he
[22]Criminal Procedure Act 2009, s 276(1)(b) and (c); Baini v The Queen (2012) 293 ALR 472; Andelman v R [2013] VSCA 25.
bore no onus of disproof – non-existent.
Conclusion
Neither ground can succeed. The appeal must be dismissed.
BUCHANAN JA:
I agree.
ASHLEY JA:
I also agree.
BUCHANAN JA:
The order of the Court is that the appeal is dismissed.
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