Khan v The Queen
[2011] VSCA 286
•23 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0887
| MOHAMMAD KHAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, REDLICH and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 March 2011 |
| DATE OF JUDGMENT | 23 September 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 286 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Smallwood, 27 October 2008) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Complainant awoke in alley outside nightclub with man on top and others around jeering – Whether trial judge sufficiently summarised defence case and record of interview – Whether directions on consent adequately related to defence case – R v Zilm (2006) 14 VR 11, considered – Leave refused.
CRIMINAL LAW – Application for leave to appeal against sentence – Whether factual basis for sentence not open to trial judge – Manifest excess – Leave refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr G J Traczyk | Buxton & Associates |
| For the Crown | Mr B L Sonnett | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Tate JA.
REDLICH JA:
I have had the benefit of reading in draft the reasons of Tate JA and agree that the applications for leave to appeal against conviction and sentence should be refused.
TATE JA:
The applicant, Mr Mohammad Faisal Khan, was found guilty by a jury of the rape of a 30-year-old woman, in an alleyway outside the 3D Nightclub (‘the club’) in McKillop Lane in the centre of Melbourne in the early hours of the morning of 9 December 2006. At trial, he admitted intentional sexual penetration of the complainant. His semen was detected inside the complainant’s vagina. The principal issue at trial was whether Mr Khan was a member of a group of men who had sexually attacked the complainant on 9 December 2006. It was Mr Khan’s defence that the sexual activity he had had with the complainant on the same night was consensual and there was no one else present at the time.
At trial the Crown initially proceeded on the mistaken assumption that Mr Khan had conceded that he was the man whom the complainant discovered was on top of her when she awoke in the alleyway outside the club. It appeared at first that the Crown’s case would be directed to proving that the complainant had not consented and Mr Khan did not believe that she was consenting or was aware that she might not be consenting. It emerged in cross-examination of the complainant that Mr Khan denied that he was the ‘man on top’ and his defence was that his consensual sexual activity with the complainant had occurred in a separate incident, wholly unrelated to any incident on the same night with a group of men. The Crown
accepted that it was unable to prove that Mr Khan was the ‘man on top’. The trial judge ultimately directed the jury that the only basis upon which it could convict Mr Khan was if it was satisfied beyond reasonable doubt that Mr Khan was a member of the group.
Mr Khan was sentenced to imprisonment for a period of eight years, with a minimum non-parole period of five and a half years. He now applies for leave to appeal against both his conviction and sentence.
I would refuse the application for leave, both in respect of conviction and sentence. My reasons follow.
The events at the club
It is necessary to set out in some detail the background to the events at the club to explain the context that gave rise to the charges against Mr Khan and in order to understand the complaint evidence relied on by the Crown.
Late on the evening of 8 December 2006, the complainant left her home with a friend, Russell Irvine, who had called to pick her up to take her to the club to watch another friend, Ben Nuttall, perform as a DJ. Russell and the complainant were friends but were not in a relationship. The complainant had consumed one pre-mixed drink of bourbon and coke over the course of about an hour while getting dressed. The pair went first to pick up some other friends, Mikey and Leroy, from a house in Caulfield where Mikey lived. They stayed at the house in Caulfield for a couple of hours during which time the complainant consumed another can of mixed bourbon and coke and shared a joint with her friends.
The complainant, Russell, Mikey and Leroy, arrived at the club at about 1:00am or 1:30am on the morning of 9 December 2006. The club has three levels. They went upstairs to the top floor and met up with Ben and his girlfriend, Pippa. Ben was yet to start his set. About 1:30am, on the top floor, the complainant consumed an ecstasy pill, as did Russell, and she had a couple more drinks. The ecstasy tablet was of the same colour and from the same press for each of them.
Evidence was given at trial that the club was a venue that was popular with people who took the drug ecstasy. Patrons typically wear vivid or fluorescent colours (often in wide-legged trousers or ‘fatties’) as part of the overall heightened sensory experience. Techno music is played. The distinctive clothing and the fluorescent colours make it generally easy to identify people.
While on the top floor, the complainant was approached by a group of men whom she had never met before. They made it very obvious that they were watching her. They introduced themselves and attempted more than once to initiate a conversation with her and gain her attention. She could not recall any specifics of the attempts at conversation but during the night their ‘paths had crossed’. They approached her on the dance floor and over at the bar. On the dance floor one of them grabbed her and tried to embrace her. Although she could not recall this in her statement to the police, in her evidence at trial she said that one of the group ‘[j]ust grabbed me - I don’t [know] which - It was the tallest one with the cap. Wrapped his arms around me and planted a kiss on me and it was disgusting’. Russell asked her: ’What was that all about?’ She told him that it was horrible and the group of men were making her feel uncomfortable. She could not recall whether this had happened upstairs or downstairs.
When Ben’s set started, around 3:00am, the complainant moved downstairs and she, Russell, Pippa, Leroy and Mikey danced together. She may have had another drink, bringing her total consumption of alcohol during the evening to about five standard drinks. The complainant said that she did not recall Ben’s set finishing but she did recall that getting towards the end of the set, Russell said to her, ‘I’m going to the toilet, won’t be long’. (There was evidence that Ben’s set finished at about 4:00am or 4:30am, a set typically lasting an hour or an hour and a half.)
The next thing that the complainant could recall was waking up in the alleyway outside the club in daylight. She was not able to give evidence of the circumstances in which she left the club.
When she awoke, one of the men from the group of men who had earlier approached her at the club was crouched on top of her. She said he was ‘trying to get on me, so he was probably about halfway down my body – crouched over me’. She felt that there was a hand being pulled away from the area around her vagina. There were two or three other men around her. She was lying face up with her underwear moved to the side and her jeans around her ankles. She was bewildered as to how she got there. She saw the buildings all around her and on becoming conscious she screamed. She felt a sensation of being wet and aching in the vaginal area and of having been penetrated. She could hear laughter and jeering, with one of the men saying to the man on top, ‘Get it inside the bitch’. She yelled ‘Get off me, you cunt’ and whacked the man on top of her.
The man on top of her jumped off and all the men ran off as a matter of urgency. She got to her feet. She felt very light-headed as though she had been sedated and unconscious for a period of time. She saw the group of men run out the end of the alleyway to the right, laughing, and sticking their fingers up at her. She realised that her handbag had gone. She walked to the end of the alleyway and tried to catch people’s attention to find her way back to the club, not knowing how to get there.
On reaching the club she went upstairs looking for Russell and eventually found him. This appeared to be about 6:00am. She tried to describe what had happened although she had trouble speaking coherently. She said to him ‘I was raped’. While talking to Russell she saw the group of men who had attacked her standing on the other side of the club. The man who had been on top of her, whom she described as the tallest man of the group, who wore a bright-coloured cap, stuck his middle finger up at her. She tried to say to Russell, ‘That’s him; that’s him’. The man on top disappeared and Russell went to inform security. Russell came back and said he could not find any of the men from the group.
She thereafter clung to Russell, terrified, and he took her home. She had another ecstasy tablet because, in her words: ‘I just basically wanted to numb it’.
The description the complainant gave to the police, at the committal, and later at the trial, was that the ‘man on top’ was tall, white or light-skinned, who was wearing a cap and a brightly coloured T-shirt with jeans. She gave evidence that the group in the alleyway were the same group that had approached her in the club.
Russell gave evidence of the events at the club and what the complainant had said to him. He recalled, when they were upstairs early in the night, ‘seeing a guy come up to her [the complainant] and talk to her at one point and the same guy came up and put his arms around her and gave her a kiss later’. She told Russell that she had not wanted that to happen. He gave a description of the man who had kissed the complainant on the dance floor, namely, a man wearing black with white piping and stovepipe straight-leg jeans who had curly hair and fuzzy sideburns. Russell was only a few feet away at the time of the kissing incident and he had seen the man speak to the complainant earlier. His clothing was distinctive. Russell knew most of the people dancing upstairs.
When Russell and his friends went downstairs to dance during Ben’s set he recalled dancing away from the complainant at one point ‘and the same guy that was upstairs came up and was dancing in physical contact behind her. She looked around and realised it wasn’t me, and she very quickly moved forward’. He identified the guy who had kissed the complainant, the guy with the curly hair and sideburns wearing black with white piping, as being part of a group of about four guys ‘hanging out together’, one of whom had ‘a yellow or brown or yellow and blue stripey horizontally banded top … [and] a taller guy with a baseball cap … [which] I think was red’. They ‘were dancing close to us when we were listening to Ben’s set’.
He recalled that when Ben’s set finished, about 4:00am or 4:30am, he left the club for five or ten minutes to get some fresh air and the complainant at that stage was happy, walking around, talking and reasonably fine. She behaved the same as she had always done during the six years of their friendship. He felt lightened, enjoying the music and was well in control of his own capacities. Before he left to go outside he had not had the complainant out of his sight since they arrived at the club. When he came back he could not find the complainant so he went wandering meticulously through the club looking for her. He sent her a SMS at 4:59am but there was no response. He began to get quite panicky. He went into the second-floor bathroom and when he came out he saw the man in the black clothing pass him on the hallway. Shortly after that, he saw the complainant standing at the bar without her bag. This was before 6:00am and could have been 5:30am or 5:45am.
He said to her: ‘Where the hell have you been? I’ve been looking everywhere for you.’ He then noticed that she was in real distress. She was visibly upset and looked drained. She tried to talk to him but could not seem to get the words out. It took three or four attempts before he could make sense of what she was saying. She said to him that ‘she’d been taken out of the club and that she’d been raped, held down and raped by a bunch of guys in an alleyway and that they’d gotten her bag’. He asked her if she recognised who had done it and she said to him, ‘That guy from earlier. The guy that kissed me’. He gave evidence that the guy who kissed her was one of the group that had been dancing close to her during Ben’s set. However, in cross-examination he said that when he found the complainant: ‘I honestly can’t remember if I said, “Was it him? Was it that guy?“ or if she said it was that guy’.
They spent the next hour unsuccessfully looking for the man in the black clothing and the group of men he was with. At one stage she had said to him: ‘That’s one of them. That guy in the cap.’ When they turned around they could not find him again. This occurred about 6:00am or 6:15am.
He specifically recalled the way she had described the rape:
I asked her how many raped her, I think, and she said she only remembered one, but that there were two holding her down and there was a – there was two holding her down, hands and feet, and that there was another voice that she could hear that was egging them on. The one who said, ‘Go on, stick it in her.’
When the complainant was cross-examined, she was asked about some statements Russell had earlier made at the committal:
In terms of that conversation you had with [Russell] Irvine – to be fair I’ll read the paragraph to you?—Okay.
… This is what Mr Irvine has stated, ‘I continued on to the dance floor and there was [the complainant]. I walked straight up to her and said, ‘Where have you been? I’ve been worried.’ She said, ‘I don’t know, I’ve just walked halfway round the city.’ I asked why she was out there? She told me that the guy who had kissed her had brought [sic] her a drink and offered her bongs in the car and she went out with him and three of his mates. At this time [she] looked to me quite dazed and she did not smell of dope. She couldn’t put a sentence together. She then told me there were four of them. I then asked her what did they do. She said that she had been raped by the bloke that kissed her, the one I said was the wanker’. I was asking you there and I think you agreed that you would have said to him something to that effect? —Wow. Yes, I don’t remember the specifics but …
Mr Irvine has stated that he had an opportunity to observe the man who kissed you?—Yes.
As I say, on those occasions I’ve already raised with you?—yes.
He described the man … he noted, he said, ‘He was wearing black pants and a long black-sleeved top with white piping on it. He had dark hair and weird sideburns. The sideburns were neatly trimmed and were on an angle towards his nose. To me they looked like caterpillars had died on the side of his face. He looked to me to be mid to late 20s, he was Mediterranean.’ That’s the description he gave of that man. Yesterday you told us that your memory was that it was the man who was the ringleader in the brightly coloured clothing that kissed you?—That’s interesting. Is he describing the man who he said he saw kiss me, is he?
Yes … Yes?—I have no comment, I really don’t. Doesn’t make any sense.
The description, particularly of what he was wearing is quite inconsistent with the evidence you’ve given as to who that was?—There was a few in the group and they were all very persistent.
Is that an example … of how because of – and I’m not being critical and because of the situation you found yourself in you had to reconstruct or to put your memory back together based on snippets you could remember. You told us that’s what occurred, haven’t you?—Yes.
Can I suggest to you that in doing that there’s a danger or there’s a possibility that you’ve made some mistakes, that during a reconstruction process there are things you might not have remembered correctly or perceived correctly, firstly, so that would affect your reconstruction?—Maybe I got their clothes mixed up.
Also the order of events could be mixed up too, couldn’t it?—Of course it could. When sedation is involved.
The case at trial
The defence case was that there had been consensual sexual activity between Mr Kahn and the complainant in the alleyway outside the club in the early hours of 9 December 2006. This was based on Mr Khan’s record of interview. There was a formal admission that Mr Khan had sexually penetrated the complainant.[1]
[1]Pursuant to the former s 149A of the Evidence Act 1958.
As mentioned above, at first it appeared, at least to the trial judge and to the prosecution, that the defence case was to be that Mr Khan was the ‘man on top’, but that the sex had been consensual and that there was no one else around at the time. It appeared initially that the trial might be relatively straight-forward with the only issue in dispute being whether the Crown could prove beyond reasonable doubt that the complainant was not consenting and that Mr Khan did not believe that she was consenting or was aware that she might not be consenting.
That view was based in part upon the response by the defence to the Summary of Prosecution Opening. Paragraph 7 of that Opening alleged that ‘the next thing she can recall is waking up in a laneway near the pub. She was lying on her back and the accused man was on top of her. Two or three other males were nearby laughing.’[2] The defence response was in these terms: ‘As to paragraph 7 of the Summary of Prosecution Opening the accused admits that he was involved in some consensual sexual activity with the complainant but denies that any other people were present at the time’. The trial judge pointed out to defence counsel that the defence response did not say, as perhaps it should have: ‘The accused was not present and cannot admit or deny’.
[2]Emphasis added.
The prosecution did not appreciate until well into the trial that there was to be a dispute as to whether Mr Khan was the ‘man on top’ of the complainant while others were present. It proceeded on the basis that it was conceded that the ‘man on top’ was Mr Khan.
Eventually the defence disclosed that it contended that the ‘man on top’ was not Mr Khan. This it did by relying on the complainant’s description of the ‘man on top’ as a tall, white or light-skinned man who wore a cap. Mr Khan is of Pakistani origin.[3] The defence further relied on the complainant’s incapacity to recall in detail her surroundings or what had taken place and the fact that there was a two-hour gap for which she could not account, a ‘massive big black spot’ as the complainant had described it. The defence was that the consensual sexual activity was a separate incident from any attack by the group of men and that he was not a member of the group.
[3]R v Khan (Unreported, Judge Smallwood, 27 October 2008) [9].
On the fourth day of the trial, it was conceded by the Crown that it could not prove that the ‘man on top’ was Mr Khan, and that the primary case depended on proving that Mr Khan was a member of the group.
There was no attempt by the defence to place a precise time on the alleged sexual activity with Mr Khan, although it was put that it occurred earlier than the event the complainant described with the group of men, and that it occurred within the two-hour period of memory loss.
The complainant gave evidence by video link and could not observe Mr Kahn. The defence case was put in summary form to the complainant in these terms:[4]
[4]Emphasis added.
I suggest to you that during your time at the nightclub that you spoke to a person, the accused man Mr Khan. Just to make it clear, he was someone other – I suggest to you he was someone other than the person either who was on top of you or who was within the group in the alleyway that you’ve described?—Part of the group, yes.
Can I just put this to you: I suggest that you spoke to someone who wasn’t part of that group or the ringleader, as you’ve described him, during your time at the nightclub, and agreed to accompany him outside?—I don’t remember doing that.
...
Well, just to make it very clear … what I’m going to put to you is a scenario that’s different, that did not involve a group of men. Okay? So it’s a situation where it was just involving one person and that someone was different from the people that you’ve given evidence about. Do you understand what I’m getting at?—Yes, I understand what you’re getting at.
Can I suggest to you that there was that discussion, that you went out of the club with him voluntarily and spoke to him?—I don’t remember it.
Then you became friendly with him and began talking and kissing?—I don’t remember that at all.
That you agreed to go to his car which was parked some distance away?—I don’t remember that.
That you engaged in some kissing and touching with him which was done with your consent?—I don’t remember that, and I would assume I would not have consented to that.
At a location near his car that kissing and touching went further and again that was with your consent?—I don’t remember anything.
Ultimately there was some sexual contact where this man, who’s not the man – not in that situation with people around him, with your consent, placed his penis, which was only partially erect, into the outer parts of your vagina?—Sorry, say that again.
After what I’ve described, I suggest to you that ultimately there was some sexual contact with this man – who wasn’t surrounded by other people, he was on his own – with your consent, placed his penis which was only partially erect into the outer parts of your vagina. You’re shaking your head as ‘no’?—No. I have no memory of anything like that at all.
Ultimately his DNA was located in your vaginal area?—It doesn’t make any sense.
And I suggest that that activity only lasted for a brief time, less than 30 seconds, because he couldn’t maintain an erection?—I have no memory of that at all.
As I said, I suggest there was no one else present and no force used?—I have no memory of that whatsoever.
You both then got dressed, walked out of the alleyway together to the corner of Queen and Bourke Streets?—No, no, I have no memory of that whatsoever. I’ve stated to you that I woke up in an alleyway, one man on top of me, people around – or other people of the group. I came to, they ran off. There was no consensual sex at all. I’m sorry.
No, and I’m not going to be too much longer. At that point, after you walked out of the alley together, can I suggest that what happened was that he went to a convenience store and that you indicated you wanted to go back to the club and that he pointed you in the direction of the club. You’re shaking your head ‘no’?—No, I – no. I have – no, I really don’t think that that’s true. I have no memory of anything of that.
Can I suggest to you that that whole incident took no more than 15 to 20 minutes after you’d left the club with that person?—It doesn’t make any sense to me. I have no memory of any of that.
Can I suggest to you … that your recollections of what occurred on this night have been affected by whatever it was that happened to you in terms of – to render you in that state where for some point at least you say you weren’t conscious and that you’ve been - ?—I know I wasn’t.
You’ve engaging in a process of trying to reconstruct what occurred, but there’s still that big two-hour black hole, I think is the term you used ---?—Yes.
That you can’t account for?—Mm.
Can I suggest that the effect of the situation you were in has caused you now to reconstruct your memory in an inaccurate way, in a way that’s not accurate?—Well, I think under the circumstances that’s going to happen. I mean, it’s two years later. There’s two hours that I can’t fill in.
Yes, thank you. Finally, can I suggest to you … if the incident you described occurred as you described it – that is the incident you’ve given evidence about – that it occurred later in the period between 4.00 and 6.00 towards the end of that black hole?—I’m sorry, could you repeat that.
Yes. I suggest to you that if the incident you described, that is the incident in the alley with the men surrounding you and the man on top … occurred in the way that you described it, that it occurred toward the end of that two hour black hole, towards the end of the period between 4 and 6 am? —Suggesting another group of men found me and raped me in an alley? Maybe.
Well, can I suggest that it’s a separate incident. If it did occur, it was a separate incident and involved a different person to the person that I was putting the scenario to you a moment ago who was on his own?—I can’t clarify that because I have no memory of it.
In re-examination the complainant denied having had consensual sex with anyone on the night she went to the club.[5]
[5]She was asked: ‘[O]n the night you went to the 3D Club, do you recall having any consensual sex from anyone?—No, not at all.’
It is apparent from the cross-examination extracted above that an essential element of the defence was that Mr Khan was not a member of the group of men who sexually attacked the complainant. Critically, Mr Khan did not suggest that the complainant was lying in denying having had consensual sex with him. The basis of the defence was that the complainant genuinely could not recall the separate consensual sexual activity with Mr Khan because she suffered memory loss as a result of what had happened to her on the night and the ecstasy, cannabis and alcohol she had consumed. In other words, the defence relied on the complainant having experienced a genuine two-hour loss of memory during which she lost consciousness and that, affected by whatever traumatic events had occurred to her at some point during that two hour ‘black hole’ and the drugs and alcohol she had consumed, she was left with a fractured memory. She had tried to reconstruct the events of the night but was inaccurate in doing so, having forgotten about the earlier consensual sexual activity with Mr Khan.
Mr Khan did not give evidence at the trial.
The grounds of appeal against conviction
The proposed grounds of appeal[6] relied on by Mr Khan were as follows:
[6]For convenience of expression, I hereafter refer to them as simply ‘grounds of appeal’.
(1) The learned trial Judge failed to properly direct the jury as to how they could use evidence of recent complaint.
(2) The learned trial Judge erred in deciding that there was no evidence of prior inconsistent statements and subsequently, in accord with that finding, failing to direct the jury as to the use to be made of prior inconsistent statements.
(3) The learned trial Judge erred in deciding that statements made by the complainant to the witness Russell purporting to identify the person who raped her were not part of the res gestae.
(4) The learned trial Judge failed to adequately sum up the defence case in his charge.
(5) The verdict is unsafe and unsatisfactory in that the whole of the evidence was incapable of rebutting a version of consensual penetration in the way set out in Mr Kahn’s record of interview.
(6) The learned trial Judge failed to properly direct the jury as to ‘consent’ particularly in circumstances as to the effect of the alcohol, drugs and unconsciousness.
(7) The learned trial Judge failed to properly direct the jury as to the state of mind of an accused necessary to convict of rape.
At the hearing of the application for leave to appeal, Mr Khan chose to group interrelated grounds so that ground (1) was to be read with ground (2), ground (4) with ground (5), and ground (6) with ground (7).
Grounds 1 and 2 - recent complaint and prior inconsistent statements
With respect to the first two grounds of appeal, the focus of the argument was not on the direction the trial judge gave as to the confined use that can be made of evidence of a recent complaint[7] because he had accurately stated to the jury that the complaint could only be used for the purpose of assessing the complainant’s credibility and not used as proof of the facts asserted or as giving additional support to the probability that the offence took place. He said:
[A recent] complaint [is one] which is made at the first reasonable opportunity and that’s made on the basis that historically at least that you might expect that someone [who] has been sexually assaulted they will complain about it. In court, I said the other day, it is really in reality it is to negate accusations that no complaint was made so in that sense it is a bit of a nil all draw.
The complaint that was made here was effectively the first person … that she spoke to, that is, [Russell] Irvine, there is no suggestion here there is not an immediate complaint by the time she gets back to the nightclub and then becomes a question of what she can make of it, as I have said to you it is to show consistency, that is that there was a complaint and that fits in with what is being said now and what was being said when she spoke to the police.
…
None of the things are evidence before you of the truth of the contents, OK. That the evidence about someone buying a drink that is what she said, but that is not evidence that you can act on that that happened by itself, OK.
[7]On the use that can be made of the evidence of recent complaint, see R v Munday (2003) 7 VR 423, 427-35 [11]–[27] (Ormiston JA).
The focus of Mr Khan’s submissions was that there were relevant inconsistencies between the nature of the complaint the complainant made to Russell and her evidence at trial and that the trial judge had erred in concluding that there were no prior inconsistent statements which could be attributed to the complainant. This submission was made despite the fact that at trial, counsel for the defence expressly disavowed any reliance on inconsistent statements made by the complainant saying: ‘I certainly don’t propose to address the jury about any prior inconsistent statements, your Honour’.
The alleged inconsistencies were argued to lie in the differences between the complainant’s evidence at trial that she could recall nothing after leaving the club, the rape occurring while she was unconscious, and the description she gave to Russell of the rape, of which he gave evidence at trial, including the specific details that:
(1) she had been taken out of the club, held down and raped by a bunch of guys;
(2) it was the guy who had kissed her;
(3) they had asked her to come outside for a smoke and one of them had given her a drink; and
(4) she was able to identify the man who kissed her.
For the complainant to have knowledge of those details, it was argued, she could not have been unconscious as she described at trial.
The problem faced by Mr Khan is that the differences identified are matters of detail rather than direct discrepancies. The complainant repeatedly stated that she felt as though she had been ‘sedated’ and admitted that she had had to reconstruct what took place from snippets of memory. Moreover, the complainant’s fractured recollection of the details was well explored at trial. The Crown submitted that in relation to evidence of complaint, the focus is on whether the behaviour complained of is consistent with the allegation rather than whether every detail of the complaint is consistent with the allegation. I agree.
The evidence was that, when she became conscious, the man on top was crouching over her, ‘trying to get on me’. She felt that there was a hand being pulled away from the area around her vagina. She felt that she had been already penetrated and was wet and aching in the vaginal area. The evidence is consistent with the man on top either having already penetrated her or not having yet penetrated her, but preparing to do so. The jeering voice egging him on saying ‘Stick it in her’ or ‘Get it inside the bitch’ might also suggest perhaps that penetration by the ‘man on top’ may not yet have occurred. The penetration of which she became aware may thus have been penetration by another member of the group, including the man who had kissed her as described by Russell, the man whose appearance is consistent with Mr Khan’s. In any event, her evidence at trial in this respect did not contradict the nature or terms of the complaint the complainant made to Russell, although it was less detailed.
With respect to the complaint that the man who had kissed her had raped her, the complainant said at trial that she might have mixed up what clothing the men were wearing and that all the members of the group had been persistent.
Furthermore, the defence could have explored any inconsistencies between her previous complaint to Russell and her evidence at trial by reference to the statement Russell made to the police about her complaint or the evidence he gave at the committal about her complaint to him. Had that occurred, the full details of her complaint to Russell may have unfolded. This included what did not emerge at trial, namely, that she had said to Russell that the guy who had kissed her was the only one that had penetrated her as the other three males could not achieve an erection. Such damaging detail would have been prejudicial to Mr Khan, given his admission of penetration and that only his DNA was identified. On the other hand, under cross-examination at the committal, Russell also said that, as part of the complaint, she had claimed that ‘I just came to in an alley with these four guys holding me down and a guy raping me, a guy inside me’. This would not in itself have exonerated Mr Khan as it was not part of the Crown case that only one man had penetrated the complainant. Penetration by Mr Khan was conceded, even if the penetration was not complete. This was consistent with Mr Khan’s answers in his record of interview that he did not achieve a full erection and that semen leaked from his penis. This could explain the statements made by the complainant to Russell. In any event, the defence put neither of the relevant statements to the complainant at the trial. It can only be assumed that the defence saw a forensic advantage, on balance, from the approach it took.
Moreover, the Crown did not rely on any aspect of the statement by Russell that was not independently corroborated by the complainant in her evidence at trial. In particular, it did not rely at all upon the statement that was potentially the most damaging to Mr Khan, the statement about the incapacity of three of the men.
Mr Khan also submitted in his written submissions that while it was conceded that there was a complaint of rape, the trial judge had failed adequately to direct the jury that before complaint evidence could properly be used, ‘the jury would need to be satisfied that the complaint related to rape by [Mr Kahn] rather than rape by “the man … on top”, the latter scenario not being in dispute’.[8]
[8]Outline of Submissions on behalf of the Applicant, [13]. Emphasis in original.
In my view, the submission rests on flawed reasoning. By the time the trial judge charged the jury, the issues in the trial had crystallised and the fundamental question was whether Mr Khan was a member of the group and had raped the complainant in the group incident. It was that alleged rape which was relevant; the Crown was not relying on some other rape that may have occurred in a separate incident at some other, and perhaps earlier, time.[9] The complaint evidence, relating as it did to the rape that occurred when the complainant was held down by the group, was relevant for that reason.
[9]This is discussed further below, at [61]-[74].
Accordingly, Grounds 1 and 2 fail.
Ground 3 - res gestae
Ground 3 was but faintly pressed at the hearing of the application for leave to appeal.
In his written submissions, Mr Khan argued that the statement made by Russell as to the details of the recent complaint made to him should have been admitted as part of the res gestae. Had it been so admitted, it was argued, it would have been evidence of the fact that the complainant was raped by someone other than Mr Khan because the description of the ‘man on top’ was of someone other than him (as mentioned above, the description given at trial by the complainant of the ‘man on top’ being a man who was white or light-skinned, tall and wearing a cap, whereas Mr Khan is of Pakistani origin). It was argued that the description the complainant gave to Russell of the ‘man on top’ should have been held to be part of the res gestae because the statements were ‘so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded’.[10] The doctrine of res gestae had not been invoked by the defence at trial.
[10]Ratten v The Queen [1972] AC 378, 389.
To this submission the Crown responded by arguing that the relaying of the complaint to Russell occurred a short time after the rape and it thus lacked the requisite element of spontaneity. It fell outside of the scope of the doctrine and rather into the category of a ‘statement … made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account’.[11] In the circumstances of the case the complainant only spoke to Russell after struggling to her feet and trying to find her way back to the club; as she said, after having ‘walk[ed] halfway round the city’. The rape was clearly a prior event, and in the required sense ‘detached’ from the complaint made to Russell. This precluded the complainant’s statement having that degree of spontaneity as to meet the test for admissibility as proof of fact. I agree.
[11]Ibid.
Furthermore, the Crown repeated what had been urged above that the introduction of details of the recent complaint as recounted by Russell in his police statement or at the committal would have been forensically devastating to Mr Khan. It is unnecessary to determine if that would have been so.
I reject Ground 3.
Grounds 4 and 5 - failure to sum up defence and record of interview – unsafe verdict
In his record of interview, Mr Khan stated that he did have sex with a girl he met at the club on 9 December 2006. He volunteered the information that there was no group involvement in the sexual activity and took pains to distance himself from the idea that he was at the club with other men. He also volunteered that the sex took place on the ground in an alleyway outside the club. Neither the group nature of the rape nor its occurrence in an alleyway had been mentioned to Mr Khan by the police.
He said:
I was thinking about it, and I did have sex with a girl once in one of the elevators [alleyways][12] in 3D.
[12]It was acknowledged that there were inaccuracies in the transcript of the record of interview and the reference to ‘elevators’ should have been to ‘alleyways’. There are later clearer references to an alleyway.
Okay.
Like – and basically, I was on drugs, and I asked a girl if she would like to do it, and she goes, ‘Yeah, let’s go for it,’ be- she was on drugs too at the same time.
…
So were you with anyone speaking to this girl on this night?
No. I usually don’t because I don’t – it’s not a group thing. Definitely not. It’s always singles.
Well, I’ll put it to you that you were speaking to this girl, and there was two or three other mates there were there with you on the night.
Oh, no. Can’t be. I don’t involve any other mates just for one girl sex, for example. Yeah.
No, what I – what I’m … getting at, when you were speaking to this girl in the club, I put it to you that there was two or three other males standing with you when you were speaking.
It would have been. It would have been. But they were just regular mates while we were just dancing around and standing there …
So you say these people weren’t …
No they –
…
Weren’t my mates. They were just basically standing there probably. Probably I knew them in the club and say, ‘Hi how you going?’ and talking to them …
Did – did you have any interaction with her in the club?
Just talking.
…
Basically we had a chat and waited around for a little bit, … … if she wanted to go tell her friends something, that she was going outside, for example. I don’t know what they did but yeah. Then we basically ended up outside, and got into the elevator [alleyway], and then we had sex, and yes.
…
Was there any mention of asking the girl to come outside to have some – to smoke, or anything like that, or -?
No.
So did you go to your car when you went outside?
Probably I would have gone to the car to get something, but that’s about it.
What do you mean get something?
Like, probably condoms.
Okay. Alright. So you’re - do you remember what this girl looked like?
No.
Do you have any recollection of it, what she looks like, or what she was wearing?
No.
…
Where did you go?
We went to the alleyway and we had sex.
…
Did you ---?
Because she – she knew that it was leading to sex. It’s – there’s – most people know, like, once you take something out, there is something going to happen. But it wasn’t forceful sex. She didn’t say no, she didn’t say anything. She just went with it.
…
My condom broke as well.
…
How did you have sex with her?
On the ground.
…
I did have – probably have sex with her. I probably leaked ‘cos it – we’re – ‘cos we’re leaking all the time. I’m leaking when I’m on drugs.
…
Okay. So you say you wouldn’t have had a – an erection?
No, I don’t have an erection because I can’t get an erection when I’m on drugs.
Okay? And you definitely wore a condom?
Yes, and then basically that broke as well.
…
I remember the part where we basically had sex, and, basically, I put the condom on, or I was trying to. I was forcing it, basically. And then we started … I figured out it was rubbing and I realised we were on drugs, and everything’s just happening.
…
Was she intoxicated?
Yeah, she was on drugs as well. She was really on drugs. She couldn’t talk or walk properly …
Would you say with her level of intoxication, would she be able to consent to have sex?
Yeah. I mean, she was talking to me clearly.
…
Can you remember her name?
No.
…
You – you and – you and three other guys have ---?
No, there was no – no – I – I don’t smoke marijuana, for starters. And you – there’s no marijuana in my body. And no, there was no other guys outside, and – it was just me and her. It’s always one-on-one. I never drag anyone else.
What did you do after you had sex.
Had sex? Went back to the club.
And what happened then? Did you see any of the other people that she was with after that?
No, I don’t know who she was with, basically. And then we just disappeared, and went to a different club in the morning.
So you say ‘we’. Who did you go with?
I went by myself.
You just said ‘we’?
I – no. We went back. Me and her went back to the club. We dispersed and then I went to–
So you went back together?
Another club. Yeah, basically. We’re walking – like, I was walking probably two metres away from her, and she was walking behind and – ‘cos she went back – I don’t know where she went. I went into the club, and then after the club finished I went to a different club.
He was asked in the record of interview about the DNA analysis of the semen that was found in the complainant’s vagina:
How do you – and do you have any way of explaining why or how your semen ended up in her vagina?
Well, I wouldn’t have had an erection, basically. It would have been basically just – been like a little bit off the inside. I would have said that, and then basically we would have – not come, but … because I knew the condom broke on my way out.
Yep.
It wouldn’t have been completely full-on – full erection be inside her. It would have been that little bit when I was inside her. So that’s why that basically my semen would have been found inside her.
In his charge to the jury, the trial judge characterised the Crown as saying that:
She wakes with that group around her. She screams … and they all run. She says that is the same group. Mr Khan’s semen is subsequently found to be inside her, and the Crown say that his explanation for that, as given in his record of interview, is ridiculous, and that when you examine that interview closely, he knows far more about it than he’s saying and you just cannot believe his explanation. They say in those circumstances, you are entitled as a jury to draw, it being a circumstantial case, beyond reasonable doubt, the inference that he had sexual intercourse with her while she was incapable of consenting either through unconsciousness or intoxication and that he was well aware that she was in that state and was either not consenting or was aware that she might not be consenting. The Crown say from all the evidence that has been given you can infer those aspects beyond reasonable doubt.
He then summarised the defence case as follows:[13]
The defence say well, you cannot, or you should not do that. Firstly, and this is not in the order it was done, but firstly the defence say you have got no way of determining how she became to be unconscious, if she did. What you have got is a description of memory loss and her describing herself as ‘waking up’. You have no idea and neither has she how long that process took, or how long she had been there.
The defence say that there is anything up to two hours missing here. That memory – loss of memory does not equal unconsciousness … That she could have become unconscious because of the pill she took at the outset and you have no idea what occurred after that. If you could not be satisfied say the defence, that the group of people, if there was a group of people, around her and in the vicinity at the time she woke up, was a group which incorporated or included the accused. That you could not be satisfied beyond reasonable doubt that at the time the accused had intercourse with her, which is conceded, that it was not either with her consent, and she just simply cannot remember it, or alternatively, the Crown cannot prove beyond reasonable doubt that he was aware that she was not consenting or might not have been consenting. And that is incorporating all the evidence.
So they are the two positions as exist, and that is an extremely truncated description of the arguments but I think that is basically the argument that exists here.
[13]Emphasis added.
Mr Khan submitted that the trial judge’s summary of the defence case was overly truncated and, in particular, failed to set out Mr Khan’s version of events as proffered in his record of interview. The Crown had relied on the record of interview as supportive of Mr Khan’s guilt, given the volunteered denials about aspects of the case which had not been put to him, most especially the denial that a group of men was involved and the anticipation of the scene and location. However, Mr Khan submitted that it could just as easily have pointed to an innocent explanation (the consensual sex after a brief and, it would seem, anonymous conversation) that the trial judge was obliged to recount and direct the jury that it should acquit if it considered that the circumstances of the case were consistent with Mr Khan’s innocence.
There is no doubt that a trial judge is obliged at common law to summarise the salient points of an accused’s record of interview. As Nettle, Redlich JJA and Beach AJA said in a joint judgment in Scetrine v The Queen:[14]
This Court has reminded trial judges repeatedly of their common law obligations to relate the evidence to the issues, to summarise the salient aspects of an accused’s record of interview and to summarise counsel’s arguments.
[14][2010] VSCA 194, [16]. See also Alecu v The Queen [2010] VSCA 208, [28]-[29].
Callaway JA discussed the nature of the obligation in R v Zilm:[15]
A record of interview does not have to be summarised in every case, but here it contained the most important part of the applicant’s defence. It was not enough to refer to it briefly and to say that the jury could watch the videotape if they wished. The law had to be explained by reference to the facts of the case. Part of that exercise entailed relating the issue of the applicant’s belief to what he said in the record of interview.
[15](2006) 14 VR 11, 14 [5].
In Zilm the accused was charged with two counts of rape involving digital penetration and indecent assault constituted by the touching of the victim’s breasts. The record of interview contained the most important part of the accused’s defence because it described the accused’s state of mind as to whether he believed that the victim, a friend of his, who had agreed to the accused sleeping in her double bed, had consented to digital penetration. After the jury retired it sought, but did not obtain, further directions on the state of mind of the accused. In his record of interview, the accused had said more than once, ‘I did not know she was asleep’. When he was asked if she had consented he replied, ‘Actions speak louder than words. I – sorry, well as I said before, she was rubbing into me [with her buttocks].’ He was asked if he considered that her actions amounted to consent on her part and said, ‘ I suppose in a way’. In the directions with respect to the rape counts, the trial judge said:[16]
In the record of interview the accused said that he said something to the complainant when he first woke up. He cannot remember what it was. He then described how he touched her breasts. He then said that she pushed back against his groin so he assumed that she was awake.
[16]Ibid 19 [35].
After summarising the cross-examination of the victim, the trial judge said:[17]
You have heard what the accused told the police in his record of interview in relation to these charges. You can listen to the tape recording of that evidence in the jury room, if you wish to do so.
[17]Ibid 20 [36].
In those circumstances, Eames JA (with whom Callaway and Ashley JJA agreed) concluded that there were deficiencies in the charge. He said:[18]
The jury in this case exhibited some anxiety on the issue of the state of mind of the accused. They had sought, but not received, directions as to the ‘importance’ of that issue. It was the question of the applicant’s state of mind, not the question whether the complainant had consented to the indecent assault or penetrations, that was the critical issue in the case. The primary evidence as to his state of mind was contained in his record of interview, not in the evidence of the complainant, which he did not challenge. True it is that the jury had that exhibit, as a videotape, but they did not have a transcript of his record of interview. Whilst it might be thought likely that they would have viewed the videotaped interview during their deliberations, it is not known that they did, and they were twice told that its viewing was optional. The contents of the record of interview were not summarised for them.
…
The deficiencies in the charge were compounded by her Honour’s response to the jury’s last question during their deliberations. In my opinion, her Honour ought then to have reminded the jury of the record of interview and its contents and ensured that the jury took it into account in their deliberations on the question of the state of mind of the applicant.
[18]Ibid 28 [69], [72] (emphasis added).
He considered that the deficiencies involved a breach of the general obligation to relate the law to the facts in issue and also a failure adequately to summarise the evidence, ‘the failure to summarise the contents of the record of interview, meant, of itself that the case for the accused had not been adequately placed before the jury’.[19]
[19]Ibid 30 [81].
Here, both the Crown and the defence engaged in discussion with the trial judge about what further should be put to the jury. The Crown submitted that its argument had two prongs and although the trial judge had conveyed the first prong, he had not conveyed the second:
Your Honour has certainly got the first prong, but the second was that even if they accepted the defendant’s version, that they still couldn’t find consent given his explanation of her being intoxicated.
The trial judge rejected the submission, saying ‘they couldn’t accept his version and convict him’ and further, that ‘you can’t elevate his description of intoxication’.
The defence at trial appeared to submit that the trial judge had omitted to summarise that part of the defence case, supported by the record of interview, that the sexual activity with Mr Khan had been by consent in a separate incident. Counsel for the defence said:
Well your Honour is specifically saying that one of the arguments of the defence is that – well you did really. It was encompassed in what your Honour said. It wasn’t put separately that consensual intercourse could have occurred before the incident that---
Yes, I thought I said that. You’re saying that you couldn’t find that he’s part of the group.
Yes, I think you did---
Once you start---
You have to redo the whole thing.
You’ve got to do the whole lot once you start with that sort of detail.
However, while not mentioned in the truncated version, the trial judge had in fact described, earlier in the charge, the version of events favourable to Mr Khan whereby a prior separate consensual incident had taken place. He said: [20]
[T]here could have been, the defence argue, consensual sexual intercourse with the accused prior to what she woke up to find. The Crown say well, it does not matter if he is the person actually on top of her at that moment or not, because she describes a group. She says that is a group that was inside earlier and his semen is inside her, in any event. So it does not matter which order it all went in.
The Crown could argue that the man is on top of her at that moment, if he did not have his pants down, that type of thing, had not, as yet, penetrated her. Which explains why there is only one – well, only one found DNA profile inside her.
So he does not have to be the person who she wakes up and sees, if you accept that that is what happened. The defence say, well, you could not do that, because this is like a boot strap argument. There is no proof that he was the man with the group inside. So you cannot – and if she is wrong about it being the same group, then she does not know how this happened, and you cannot exclude the possibility, the defence argue, of there having been an act of intercourse on an earlier situation.
The Crown argue, well, this is ridiculous. What are the odds on that, in that scenario – well, you have got to be satisfied beyond reasonable doubt, of guilt. What is the likelihood of their having had consensual sex with this person, then winding up in that position with persons unknown. The defence say, well, stranger things have happened. And the problem you have got is a gap.
[20]Emphasis added.
The manner in which a trial judge chooses to discharge the obligation to summarise the salient aspects of an accused’s record of interview must depend on the circumstances of the case and the way in which the trial has been run. Here, the trial judge in effect directed the jury that the critical question for them was whether the Crown had proved beyond reasonable doubt that Mr Khan was part of the group that had sexually attacked the complainant. His Honour made plain that it was only if the jury were satisfied that Mr Khan was part of that group that they could convict him of rape. If the jury was not satisfied that Mr Khan was a member of that group, they were not to convict.
By giving directions along these lines, the trial judge ensured that the defence case was put in the most favourable way. It was unnecessary for the jury to go on to consider, if Mr Khan was not part of the group, whether on an earlier separate occasion of sexual activity between the complainant and Mr Khan, on the same night, the complainant had been capable of consenting or was too intoxicated to do so. By refusing to permit the Crown to put the second prong of its argument, the trial judge avoided the need for the jury to determine whether the level of the complainant’s intoxication, as described in the record of interview, left room for the complainant to be capable of giving consent or whether Mr Khan had an honest belief in her consent, reasonable or otherwise. There was thus no need for the trial judge to recount the full details of the record of interview, including the description of the brief conversation and the enthusiastic response by the complainant to the suggestion of going outside to an alleyway and having sex with someone whom she had never met before. Indeed, there was no need to recount the evidence that Mr Khan considered it probable that the complainant spoke to her friends about going outside and whether that was consistent with the evidence of Russell. There was no need to comment on Mr Khan’s inability to remember what the complainant looked like, the complainant’s name or any of the clothing that she wore. There was no need for the jury to be satisfied of any of the circumstances surrounding the separate incident – for Mr Khan to be acquitted, it was only necessary for the jury to be satisfied that he was not a member of the group.
In the circumstances of the case, in order to ensure that Mr Khan had a fair trial, there was no need for the trial judge to spell out the details of the content of the record of interview and indeed, had he done so, it would not have advantaged the defence.
Furthermore, on several occasions during the charge the trial judge mentioned the record of interview as a source of evidence, saying ‘you have the DVD, you listen to it, all right?’.[21]
[21]There are at least four other references to the record of interview in the trial judge’s charge to the jury.
More generally, I do not consider that the conviction was unsafe and unsatisfactory.[22] The circumstantial evidence relied on at the trial linking Mr Khan to the group that perpetrated the attack, and his rape of the complainant, included the following:
[22]M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; MFA v The Queen (2002) 213 CLR 606.
(1) at the club the complainant was being targeted by a group of males including one who was in his mid-20’s and of Mediterranean appearance, consistent with Mr Khan’s appearance;
(2) the member of the group whom Russell described as of Mediterranean appearance:
a. tried to cross the complainant’s path more than once;
b. attempted to strike up a conversation with the complainant;
c. came up to the complainant on the dance floor and embraced her from behind without warning and kissed her;
d. persisted in trying to interact with the complainant even when she had brushed him off on the dance floor;
(3) the group included a tall man with a cap and fluorescent T-shirt and jeans;
(4) the group were dancing close to the complainant during Ben’s set;
(5) at about 4:00am or 4:30am, Russell leaves for a breath of fresh air and recalls the complainant saying at some stage that the group of men had given her a drink and had asked her outside for a smoke;
(6) before he left to go outside, Russell had not had the complainant out of his sight since they arrived at the club;
(7) the complainant woke up on the ground in an alleyway outside the club with a man on top of her who fitted the description of the tall man with the cap and fluorescent T-shirt and jeans and two or three men standing around, laughing and jeering and urging him to ‘stick it in’;
(8) the complainant was aware that she had been penetrated and her vagina felt aching and wet;
(9) the complainant screamed at the group of men and they ran off together urgently and sticking their fingers up at her;
(10) Mr Khan admitted intentionally penetrating the complainant;
(11) only DNA from Mr Khan was identified from the vaginal swab (in addition to the complainant’s own);
(12) there was a recent complaint by the complainant to Russell at about 6:00am, showing general consistency of behaviour;
(13) the complainant was observed in real distress after attack;
(14) the complainant reported to Russell being raped by the man who had kissed her;
(15) the complainant pointed out a group of men at the club who perpetrated the attack, including the tall man with cap and fluorescent T-shirt and jeans;
(16) the tall man stuck his finger up at the complainant and disappeared with the other men in the group;
(17) Mr Khan admitted sexual activity with the complainant on the ground in an alleyway outside the club on the night in question – the same location as the crime setting;
(18) Mr Khan anticipated the line of investigative inquiry even though he was given no details before the police interview – he denied it was ‘a group thing’ and that he involved other mates when having sex before knowing that the complaint made was in relation to a group of men;
(19) Mr Khan indicated that ‘we’ disappeared to another club in the morning despite saying he was not with a group at the club;
(20) Mr Khan’s version of events was implausible, particularly having regard to:
a. Mr Khan claiming no memory of the complainant’s name, or what she looked like, or any clothing that she was wearing;
b. the assertion that the complainant agreed to have sex outside the club after a few minutes’ conversation;
c. there being no evidence that complainant left her friends for some time, going outside with Mr Khan, and then returning to the club before a subsequent attack occurred;
d. Russell stating he had not had the complainant out of his sight since they arrived at the club;
e. Mr Khan initially denying penetrating the complainant;
f. Mr Khan claiming breakage of his condom and leakage of his semen, thus explaining the forensic evidence.
More generally, it is implausible that, during the two-hour gap of time which the complainant cannot recall (which may be as little as an hour and a half), the complainant had sexual intercourse on two different occasions in the same (or very similar) location, arriving back in the club between those occasions. In my opinion, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Mr Khan was guilty of raping the complainant.
Grounds 5 and 6 fail.
Grounds 6 and 7 - directions on consent
It was submitted that the directions as to consent were misleading and likely to confuse the jury by failing properly to relate the legal meaning of consent to the facts of the case. The directions on consent were argued not to be adequately related to the defence case.
Moreover, it was submitted that it could not be assumed that the jury did not accept in general the defence version of events but convicted on the basis that the complainant did not consent and Mr Khan had the requisite mens rea. There was alleged to be a failure by the trial judge to direct the jury that the requisite mens rea included Mr Khan being aware that the complainant was not consenting or might not be consenting, a scenario argued to be open on the defence version of events.
The Crown’s response was to argue that it was inconceivable that the jury would have accepted parts of the record of interview (the occurrence of a separate incident of sexual activity) and rejected the remainder (the consensual nature of the activity). If the jury accepted in general the version of events relied on by the defence, an acquittal would have inevitably followed.
I agree. Moreover, the jury could not have convicted Mr Khan while accepting his version of events save for the consensual nature of the activity. This is because, as discussed above, the trial judge’s directions made it clear that for the jury to be satisfied beyond reasonable doubt of Mr Khan’s guilt, they had to be satisfied that he was a member of the group that perpetrated the attack. Conversely, if he was not a member of that group, an acquittal would follow. In those circumstances, if the jury were unable to reject the reasonable possibility that there was a separate incident in which Mr Khan and the complainant were engaged in sexual activity, an acquittal would have resulted.
In any event, in my opinion the trial judge’s directions as to consent were in accordance with the statutory provisions,[23] and adequately and relevantly conveyed the meaning of consent.[24] The meaning of consent was adequately related to the facts of the case. He said:
[23]Crimes Act 1958, ss 37 and 37AAA.
[24]Crimes Act 1958, s 36.
[T]he next element [is] that she did not consent. Now what does that mean? Consent is a state of mind. The law says that consent means free agreement. So she will not have consented to the sexual penetration if she did not freely agree to be sexually penetrated. …
What this trial seems to be about – a comment from me – is this. A person does not freely agree to sexual penetration where the person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing. …
The Crown would have to prove one of those three factors beyond reasonable doubt. If she was asleep, or she was unconscious, or she was so affected by alcohol or another drug as to be incapable of freely agreeing, she did not, and in that circumstance there would be no consent. …
Her evidence is that she wakes up and that she has been ‘sedated’ is the word she keeps using. I do not know whether she actually used the word unconscious herself, or not, but it is a comment from me, unconsciousness is what she seems to be referring to. She says she has ‘woken from a dream’, she cannot think straight, all these things, ‘it is like I am someone who has just woken up, I know I had been sedated.’ What she is describing is her sensations upon waking up.
If you accept that evidence, you could if you wanted to accept that she had been unconscious. Whatever period of time it was that she had been unconscious, you may well find that she could not consent and therefore did not. …
Where it becomes trickier is that if you had a reasonable doubt as to whether she had been unconscious. You would then have to consider [whether she was] so affected by alcohol or another drug as to be incapable of freely agreeing. …
Defence, of course, say well, you could not be satisfied of any of those, because you do not know what happened …
There was no exception at trial to the directions given on whether the complainant had consented.
With respect to the mental state of an offender before he could be convicted of rape, in my opinion the directions given were also in accordance with the relevant statutory provisions[25] and adequately conveyed to the jury the mental state required before an offender could be convicted of rape.[26] The trial judge said:
The fourth element relates to the accused’s state of mind. The prosecution must prove beyond reasonable doubt that at the time of sexual penetration the accused was either aware that the complainant was not consenting, or aware that the complainant might not be consenting, but decided to sexually penetrate whether she was consenting or not. …
As I have told you, consent means free agreement. The prosecution must prove that at the time of the alleged penetration the accused man was aware that [the complainant] was not freely agreeing to be sexually penetrated, or might not have been freely agreeing. …
That is she was unconscious, or so affected by alcohol or another drug, as to be incapable of freely agreeing. It is not only aware that she was not, but in that scenario might not be. …
[H]e says in his interview that he effectively believed that she consented to sexual penetration.
If the prosecution cannot exclude that possibility, that is he believed she was consenting, beyond reasonable doubt, then the fourth element of rape will not be met. It can be a mistaken belief. Even if the complainant is in fact not consenting, if there is a reasonable possibility that the accused man believed she was, then he would have to be acquitted.
The law says that the accused’s belief in consent does not need to be reasonable. Even if the accused unreasonably believed that the complainant consented, you must return a verdict of not guilty.
[25]Crimes Act 1958, ss 37 and 37AA.
[26]Crimes Act 1958, s 38(2).
A redirection on the issue was sought by the defence on the basis that there had been no express mention that the jury would need to take into account the effect of Mr Khan’s having taken ecstasy when assessing whether he had a genuine belief that the complainant was consenting, reasonable or not. The trial judge agreed on the need for a re-direction and said:
One matter which I mentioned briefly before … but neglected to do it in proper detail, is the question of the effect of the ecstasy, if you find that he had taken it, … on the accused. … Where you would take that into account is, in determining whether you felt that the Crown had proved beyond reasonable doubt that he did not have a genuine, if mistaken, belief in consent; that is, that you’ve got evidence before you of the effect that ecstasy can have in terms of judgment and the like as to what weight you give the fact that he’d taken half a tablet, apparently, of ecstasy in terms of his perceptions of what was taking place before.
In my opinion the directions with respect to consent and Mr Khan’s mental state of awareness with respect to the complainant’s consent, or lack thereof, were adequate.
I reject Grounds 6 and 7.
Accordingly, I would refuse the application for leave to appeal against conviction.
The grounds of appeal against sentence
With respect to the sentence imposed, Mr Khan initially based his application for leave to appeal on the ground that the sentence was manifestly excessive. However, it was conceded at the hearing of the application for leave to appeal that the sentence of imprisonment for a period of eight years, with a minimum non-parole period of five and a half years, was well within the range (albeit somewhat on the high side) if Mr Khan was guilty of the offence of rape committed in the circumstances of the sexual attack by the group of men. This was the factual scenario on the basis of which the trial judge sentenced Mr Khan.
By contrast, it was argued, if this Court, in its own exploration of the whole of the evidence, determined that the factual scenario upon which the trial judge sentenced Mr Khan was not open and that Mr Khan had raped the complainant while on his own, in the context of the separate incident described in the record of interview or some other circumstance, then it should determine that the sentence imposed was outside the range. If, for example, the proper scenario on the basis of which Mr Khan should have been sentenced was that the complainant had been so intoxicated that she could not freely agree to sex and Mr Khan was aware that she might not be consenting but that otherwise his version of events was to be accepted, then, it was submitted, a much lower sentence should have been imposed. This submission is dependent upon the version of events proffered by Mr Khan being plausible. I have already indicated that I do not consider it to be so. The trial judge did not sentence on this basis and was not required to do so.
I would refuse the application for leave to appeal against sentence.
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