Criminal Law—Rape—Consent—Absence of complaint by prosecutrix—Whether evidence of consent.
Decisions
April 12. BARWICK C.J.: The Court has considered this matter and has decided to refuse the application for special leave. It will put its reasons for doing so in writing in due course. The order of the Court is that the application is refused. (at p462)
August 29. 2. The following reasons for judgment were delivered by the COURT:- BARWICK C.J. The applicant for special leave to appeal was convicted by a jury on 25th February 1970 at the Central Criminal Court, Sydney, of the rape on 25th January 1969 of Patricia Anne Organ (the prosecutrix) at Old Bar on the North Coast of New South Wales. (at p462)
3. At the time of the commission of the offence for which he was convicted the applicant was a little more than twenty years of age. He was tried along with two other young men, one about twenty-two years of age and the other almost the same age. All were charged that they did on the same evening and at the same place "without her consent ravish and carnally know" the said Patricia Anne Organ. One of the others was also convicted of rape but the jury were unable to agree on a verdict in the case of the third accused. (at p462)
4. The evidence against the applicant was that on 24th January 1969 the prosecutrix, then aged fifteen years and ten months, had travelled from Sydney to Taree in the company of a young man, sharing with him a motol room for the night though without the occurrence of sexual intercourse between them. She claimed to have been a virgin at the time of the subsequent intercourse by the applicant's fellow-accused who was convicted of rape in respect of that intercourse. Medical evidence given at the trial tended to confirm her claim. The young man with whom she was travelling sought out in Taree some of his mates without success in the first instance. Later he found them, some 80 or 100 in number - described in the evidence as "bikies" - at or near a hotel. One of these "bikies" was known to the prosecutrix: but she did not associate with any of the "bikies" when first they met. After spending the day in Taree, stopping at a "few hotels", a mixed party, which included the prosecutrix and the young man with whom she was travelling, set off for Old Bar Beach, which was about half an hour's travel by motor cycle from Taree. By the time Old Bar Beach was reached it was "late". On arrival there, desultory conversation seems to have occupied the prosecutrix for a time until she was "tackled" by the co-accused who was convicted. He picked her up and carried her about thirty yards away from the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kilby v The Queen [1973] HCA 30
Case
[1973] HCA 30
Decision Date
CaseChat Overview and Summary
The applicant, Kilby, sought special leave to appeal to the High Court of Australia against a conviction for rape. The central issue on appeal concerned whether the absence of a complaint by the prosecutrix constituted evidence of consent.
The High Court was required to determine the legal significance of a complainant's failure to make an immediate complaint in a rape trial. Specifically, the Court had to consider whether such an omission could be relied upon by the defence as evidence that the complainant consented to the sexual intercourse.
The Court, in refusing special leave to appeal, indicated that it would provide written reasons. However, the brief order signifies that the Court did not consider the legal question raised to be of sufficient importance or arguable merit to warrant a full appeal. The underlying principle likely relates to the established legal position that the absence of a complaint in such circumstances is not, of itself, evidence of consent, although it may be a factor for the jury to consider in the broader context of the evidence.
The application for special leave to appeal was refused.
Orders
Orders of the court
BARWICK C.J.: The Court has considered this matter and has decided to refuse the application for special leave. It will put its reasons for doing so in writing in due course. The order of the Court is that the application is refused. (at p462)