M, B v Police
[2019] SASC 58
•12 April 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
M, B v POLICE
[2019] SASC 58
Judgment of The Honourable Justice Parker
12 April 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - CONSENT
This is an appeal against a conviction for aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) recorded after a trial in the Magistrates Court. The Magistrate found that the complainant was affected by an intellectual impairment that rendered her incapable of freely and voluntarily agreeing to the sexual activity that she engaged in with the appellant, a family friend.
The only ground of appeal against the conviction is that it is unsafe and unsatisfactory. The appellant denies that the sexual activity occurred. In the alternative he contends that, if sexual activity did occur, the complainant freely and voluntarily agreed to engage in that activity and was capable of doing so notwithstanding her intellectual disability.
Held, per Parker J, upholding the appeal:
1. The Court, on an appeal by way of rehearing, must independently review the evidence and carefully scrutinize the findings made by the Magistrate (at [52] and [120]).
2. The Court should not interfere with the findings of fact made by the Magistrate unless they are shown to be wrong by “incontrovertible facts or uncontested testimony”, are “glaringly improbable” or “contrary to compelling inferences” (at [53]).
3. The Magistrate did not err in finding beyond reasonable doubt that the appellant engaged in the sexual activity alleged (at [54]-[61]).
4. An assault will be indecent if it has an element of “sexual lewdness” or a “sexual connotation” (at [122]).
5. The considerations identified in R v Mobilio [1991] 1 VR 339 as being relevant to the assessment of the capacity to give consent under Victorian law are also relevant when determining whether the complainant was capable of freely and voluntarily agreeing to sexual activity (at [129]-[132]).
6. After careful examination of the evidence of the expert forensic psychologist, there is a reasonable doubt as to whether the complainant was incapable of freely and voluntarily agreeing to participate in the sexual activity that occurred (at [133]-[141]).
Criminal Law Consolidation Act 1935 (SA) ss 20, 46, 49, 56; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
Fox v Percy (2003) (2003) 214 CLR 118; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; R v Mobilio [1991] 1 VR 339; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Pol v City of Port Adelaide Enfield [2017] SASC 116; R v C, M (2014) 246 A Crim R 21, applied.
M v The Queen (1994) 181 CLR 487; R v Eastwood (1998) 114 A Crim R 448; R v Harkin (1989) 38 A Crim R 296; R v P, LB [2008] SADC 6; R v Morgan [1970] VR 337; R v Richardson (Unreported, Supreme Court of South Australia, King CJ, White and Mohr JJ, 20 June 1990, Judgment No 2321), considered.
M, B v POLICE
[2019] SASC 58Magistrates Appeal: Criminal
PARKER J: This is an appeal against a conviction and an appeal against the sentence for aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) recorded after a trial in the Magistrates Court. The Magistrate found that the complainant was affected by an intellectual impairment that rendered her incapable of freely and voluntarily agreeing to the sexual activity that she engaged in with the appellant, a family friend.
Grounds of appeal
The only ground of appeal against the conviction is that it is unsafe and unsatisfactory. The appellant denies that the sexual activity occurred. In the alternative he contends that, if sexual activity did occur, the complainant freely and voluntarily agreed to engage in that activity and was capable of doing so.
The appellant has also appealed on the ground that the sentence is manifestly excessive. The Magistrate imposed a head sentence of imprisonment for a term of 10 months and ordered that the appellant be released after serving four and a half months imprisonment, upon entering a bond to be of good behaviour in the amount of $500 for a period of two years.
For the reasons that follow, I uphold the appeal against conviction. For that reason it is not necessary to consider the appeal against sentence.
Background
The prosecution alleged that on 13 November 2016, the appellant engaged in sexual activity with the complainant by placing his hand on or under her left breast while her top was pulled down, placing his mouth on her left breast above his hand and sucking her nipple. This was alleged to have occurred on the front porch of the complainant’s home while PSG, her grandfather, and CM, her brother, were at home. It was further alleged that, pursuant to s 46(3)(e) of the CLCA, the complainant is affected by an intellectual impairment that rendered her incapable of freely and voluntarily agreeing to the sexual activity.
The appellant was 54 years old at the time of the alleged conduct. He knew both the complainant and her family through their church. He had visited their home regularly for many years and had known the complainant since her early childhood.
On 13 November 2016, JH, the complainant’s aunt, came to the complainant’s home with her husband, BH. She allegedly saw the sexual activity taking place on the front porch. JH was the sole eye witness. Although BH approached the front porch immediately behind JH, he did not observe the activity.
At the time of the offence, the complainant was aged 23 years. She lives with her grandparents and brother. She suffers from an intellectual impairment such that her mental age is in the early primary school range (5-9 years of age). Put another way, the complainant has an IQ performance score of approximately 42. She is engaged in sheltered employment.
The witnesses at the two day trial were two police officers, the complainant’s aunt JH, her uncle BH, her grandfather PSG, her grandmother PAG and Mr Luke Broomhall, a forensic psychologist. The complainant was not called to give evidence and the appellant exercised his right not to do so.
I will consider separately the appellant’s contention that the sexual activity did not occur and his alternative contention that, if it did occur, the complainant freely and voluntarily agreed to engage in that activity and was capable of doing so.
Whether sexual activity occurred
The finding by the Magistrate that the appellant had engaged in sexual activity with the complainant was largely based upon the evidence of the latter’s aunt, JH.
The evidence
JH stated in evidence that she visited her parents’ home in a provincial city late on the afternoon of Sunday, 13 November 2016. She called at her mother’s request to see how the complainant’s brother, CM, was faring during her mother’s absence in Adelaide. She said that CM has autism and “mental delays”.
JH was accompanied by her husband, BH. To get to the front door of her parents’ home JH walked past the lounge room window. JH could see her father, PSG, sitting in his chair watching television. As she approached the front veranda or porch she “heard some weird noises, like bit of moaning and some loud kind of sucking noises”. JH saw the complainant, her niece, in an embrace with the appellant. She said that the appellant had his hand down the complainant’s shirt and was cupping her breast. She also said that “it was like a lover’s embrace and he had his head on her breast and was sucking on her breast quite loudly”. She had observed this activity for about five seconds (although the Magistrate suggested the period may have been shorter). Both the complainant and the appellant had their eyes closed. JH also stated that the moaning sounded pleasurable and the embrace appeared to be loving and physically consensual.
JH stated that the complainant was wearing a loose fitting shirt which the appellant had pulled down under her breast and he had her breast lifted up in his hand. She initially stated that it was her right breast and his right hand and that the complainant was arched upwards to her left side. After demonstrating what she saw, JH corrected her earlier evidence to say that the appellant was holding the complainant’s left breast. At that time she was about one metre away. She also stated that the appellant had the complainant’s breast in his hand and his mouth was on her nipple. Upon seeing JH, the complainant had pushed the appellant away and brought her top up so as to cover her breast.
JH stated that when the appellant saw her “he looked shocked. He leant back with a confused look on his face …”. JH also stated that the complainant had said “sorry Aunty [JH] I’m so sorry” while the appellant had his head down. JH stated that she said to the appellant he was a “fucking dog cunt” and should “get inside and tell them what I’ve just caught you fucking doing”. The complainant asked her to stop swearing. JH stated that she pushed or guided the appellant inside where her father, PSG, was.
While initially unsure if the appellant had a tablet[1] in his right hand and keys in his left hand, JH later stated that he did not have keys in his left hand and there was nothing but the complainant’s breast in his right hand. There was also nothing in his hands when, very soon after, he stood inside the house.
[1] i.e. an electronic device rather than medication.
JH also stated that it would not have been possible for her husband, BH, to see what was happening because he was behind her and was not able to see around a wall to the porch.
JH stated that she had first met the appellant at her parents’ home about ten years before the incident that is the subject of these proceedings. He was sitting with the complainant under a blanket on the couch. She had said to her mother and to her brother that this was a “little bit weird” and she did not think this should be happening.
JH also stated that the complainant had talked about a “secret boyfriend” about a year before the alleged indecent assault. When asked whether she thought that the complainant had become infatuated with the appellant she replied “I believe he’d made himself a very big part of her life from a young age onwards, yes. Yes.” If mention was made to the complainant about a boyfriend, JH stated “she would shut down”.
BH stated that his wife was ahead of him and as she got to the veranda she started yelling at the appellant. However, he did not see what his wife was yelling about. He had not heard any sucking or slurping sounds nor had he seen the complainant’s exposed breast. He had also not seen her readjusting her clothing. He did see the complainant crying and heard her say that she was sorry. BH had not seen anything in the appellant’s hands.
The complainant’s grandfather, PSG, stated that on the day of the alleged offence the appellant had attended at the family home to conduct bible study with the complainant’s brother, CM. That usually occurred at least once each fortnight.
PSG stated that he was sitting in his chair in the lounge room when the appellant left the house after completing the bible class. He waited for the appellant to go past the lounge room window but a couple of minutes passed without that happening. The complainant had gone out the front door of the house with the appellant in accordance with their usual practice of going onto the front veranda to say goodbye to the appellant. After about a couple of minutes PSG saw his daughter, JH, walk past the lounge room window towards the front door. He then heard her scream out “what the hell do you think you’re doing?”. She started swearing and carrying on while the complainant kept saying “sorry auntie, sorry auntie”. The complainant was crying and went to her room. JH said to the appellant “go and tell dad what you’ve been doing”. She pushed the appellant through the front door and he came into the lounge room. PSG then said that the appellant “just stood there with his head down, would not look at me and [JH] was going off at him”. The appellant then stood there for about two minutes while JH was yelling and screaming at him. After JH told the appellant to get out of her sight, he left the house.
PSG stated that he had known the appellant for about 25 years and described their friendship as “very good”. He saw the appellant at least four to five times each week. He saw him two or three times each week at their church and on the other occasions either at his house or the home of PSG and PAG. PSG also stated that it was possible to see the shape of a person through the frosted glass in the front doors.
PSG stated that the complainant had always been in a special class at school. He said that she was “only working at the age of around 10 or 12”. She could not read but could copy. He said that all persons who attended their church knew that the complainant had a disability. The appellant had attended church conventions in Adelaide at which the complainant and her family had also attended. The appellant had also gone to fairs and shows with the complainant and her family.
PSG was cross-examined at some length as to whether the complainant was capable of saying “no”. In part that cross-examination was based on an incident in the video recorded interview with police where she had refused to talk to her father when he telephoned her during the interview and also her action in correcting PAG about a social function connected with her work.
PSG had never seen the complainant flirt with the appellant. However, PSG also stated that because of the concern of the appellant’s wife that he was getting too close to the complainant, the appellant was told not to associate as much with her. However, after a couple of months the appellant had commenced calling again at the home.
PSG stated that the appellant had known the complainant since she had first attended their church about 22 years before the trial. The appellant “had always been around” and the complainant had frequently visited his home, usually with her grandparents. PSG agreed in cross-examination that the complainant was “close and warm” with the appellant and his wife and would sit between them at church.
In the opinion of PSG, all members of the church knew that the complainant had a disability. She was very childlike in her interests. While she could hold a conversation, she found it hard to understand at times. She did not understand money, e.g., she would not always realise that she was entitled to be given change.
The complainant’s grandmother, PAG, said that she thought that the complainant had developed “feelings” towards the appellant but as a “very, very very good friend like we did”. PAG also stated that she had been concerned about the feelings developed by the complainant for the appellant and that he was getting too close to her. The basis for her concern was the age difference and the fact that the appellant was married. PAG acknowledged the concern expressed by the appellant’s wife about this issue about two years before the relevant incident. After she and PSG had met with the appellant and his wife to discuss these concerns, the frequency of contact with the appellant had dropped off for some time.
PAG stated that the complainant has difficulty interacting with other people and was scared of strangers. If she became anxious she would “curl up into a ball”. She was beginning to talk to people but not very often. The complainant was also reluctant to show affection. She was interested in watching cartoons and old movies and playing with her soft toys. The evidence of PAG concerning the complainant’s attendance at church and her involvement with the appellant was much the same as the evidence of PSG. PAG stated that the appellant would have observed the extent of the complainant’s disability through his contact with her at the church, at church conventions, on a family holiday and on outings. PAG also stated that the complainant could not write but can copy text and could use a computer. The only sex education provided to the complainant was about “stranger danger”. That had been provided by her school and reinforced by her grandmother‘s explanation that there were certain places that people were not allowed to touch.
PAG stated that a male employee at the complainant’s place of work had approached PAG and asked if he could be the complainant’s friend. PAG said that the young man had been hounding the complainant at work and had sent text messages saying “I love you”. The complainant had responded with the same message. PAG acknowledged that on some occasions the complainant was capable of saying “no”.
The Magistrate’s findings
The Magistrate found that JH was truthful and entirely genuine in her description of events. While counsel had identified some minor discrepancies between JH’s oral evidence and her witness statement, those were to be expected given the time that had elapsed. JH was also able to explain some of the initial discrepancies, e.g. that it was the complainant’s left breast that was being touched. The Magistrate also found that BH was honest and described events as he saw them. His Honour described PSG as an excellent witness who gave clear evidence. He was objective and entirely genuine in his presentation. The Magistrate also found that PAG was honest and a reliable witness.
The Magistrate found it proven beyond reasonable doubt that the appellant placed his hand on or under the complainant’s left breast while her top was down, and placed his mouth on her left breast above his hand.
Evidentiary issues concerning sexual activity
The appellant has referred to a number of evidentiary issues in support of his submission that there was no reliable evidence upon which it could be found beyond reasonable doubt that he had engaged in sexual activity with the complainant.
The respondent contends that the appellant’s submissions omit relevant evidence and make assertions not open on a proper analysis of the evidence. The respondent also submits that the appellant’s contentions in respect of the alleged sexual activity are (in addition to not being open on the evidence), even taken at their highest, merely circumstances that make the occurrence of such activity somewhat less probable. None are the sort of “incontrovertible facts”, “uncontested testimony” or “glaring improbability” necessary to overturn a finding based on oral evidence.
Reliability of JH
The appellant submits that the only eye witness, JH, is unreliable. The prosecution opened its case on the basis that the indecent assault was constituted by the touching and sucking of the complainant’s left breast. However, JH had stated in examination-in-chief that the appellant touched and sucked the complainant’s right breast, and later corrected this to the complainant’s left breast. If the evidence proved touching and sucking of the complainant’s right breast, a not guilty verdict was required. The appellant submits that because of the inconsistency of the evidence of JH, the Magistrate should have found the sexual activity not to be proven.
The appellant further submits that the evidence of JH was inconsistent as to whether she actually saw the complainant’s breast. The attending police officer, Constable Cole May, recorded in his statement that JH stated that “the accused appeared to have his mouth over the victim’s breast, which appeared to be exposed at the time”. The appellant submits that JH is likely to have reconstructed the event in her mind and said “appeared” because she did not actually see the appellant touching or sucking the complainant’s breast.
The respondent submits that it was not being suggested that the evidence of JH lacked credibility but only that she may have been unreliable. Although JH was initially mistaken as to whether she saw the appellant touching the complainant’s left or right breast, once appropriately oriented by reference to photographs, she described what she saw in detailed, specific and consistent terms. JH indicated that she was “positive” about what she saw.
The respondent also observes that JH did not agree that she would have used the word “appeared” as Constable May recorded in his statement. To the contrary, her evidence under cross-examination was that she was “very adamant about what he did. I saw what he was doing.” Constable May’s statement does not purport to exactly quote JH’s words. It was an agreed fact at trial that JH told Constable Raegan Hodgeman, as an exact quote, that “[h]e was cupping her breast from underneath and had his mouth over her nipple.” The Magistrate accepted JH’s evidence beyond reasonable doubt, finding her to be “truthful”, “entirely genuine” and “clear” in respect of what she saw. The respondent submits that the assessment by the Magistrate of JH’s evidence must be given great weight.
Failure of BH to see sexual activity
BH was present and immediately behind JH at the time she asserts that she saw the sexual contact. However, BH did not see the sexual contact. The appellant submits that it is inherently implausible that there was any sexual contact if it was not seen by BH, particularly given that JH asserted that she stood standing on the path staring at the sexual contact occurring for five seconds with BH standing immediately behind her.
The respondent submits that, at the time JH saw the sexual contact, BH was on one side of a wall, with the complainant on the other side of the same wall. BH gave evidence that he “would’ve only just seen a glimpse of her behind the wall … ‘cause the wall would’ve been between us.” BH was not cross examined further about this issue.
Whereabouts of CM
The appellant also submits that CM, the complainant’s brother, was in his bedroom with the blind up at the time of the alleged offending conduct. The appellant contends that, if the offending conduct did occur, it would have been seen by CM.
The respondent notes that PSG had made a previous statement to police that CM “went off to his room”. However, the respondent also observes that this statement was not admissible for its hearsay use but only as to credibility. The respondent submits that there was no admissible evidence that CM was in his bedroom at the time of the sexual contact. To the contrary, JH gave evidence that she saw CM through the window in the kitchen making sausage rolls immediately prior to seeing the sexual contact. There was also no evidence that the blind of CM’s bedroom window was up at the time of the sexual contact.
Failure of PSG to see sexual activity
Additionally, PSG, the complainant’s grandfather, was home at the time of the offending conduct. He was sitting in a chair a few metres from the front porch with a view through the front glass door to the porch area. The appellant submits that it is highly unlikely that the appellant would engage in sexual activity with the complainant in that location, or that PSG would not have seen it if it did occur. The appellant further submits that the Magistrate erred by simply accepting PSG’s evidence that it is not possible to see through the frosted glass of the front door. The Magistrate failed to consider the damage to PSG’s credit caused by the inconsistent evidence given by JH that she could see through the glass.
In respect of the appellant’s contention regarding PSG, the respondent submits that every witness who was questioned as to the frosted glass on the front door, indicated that one could not see through the glass without being right up against it. PSG’s credibility was in no way damaged by inconsistent evidence from JH that one could see through the frosted glass, as JH did not give that evidence. JH had merely agreed with a proposition in cross-examination that a photo showed “a glass door that you can see through parts of it.” The evidence of PAG, the complainant’s grandmother, was that one would be able to see the shape of a person standing at the front door from PSG’s position at the time of the sexual contact. However, the respondent submits that this is not evidence that PSG would have seen the sexual activity occurring.
Whether appellant carrying anything
The appellant further submits that the Magistrate erred in finding that there was no evidence to support the submission that the prosecution had not excluded that the physical sexual acts were impossible because the appellant had his tablet and phone in his right hand and keys in his left hand when he was leaving the house with the complainant. It is not disputed that the appellant was at the house for bible study with the complainant’s brother, CM. PSG agreed that the appellant usually has a tablet with him but could not recall if it was in his hand on the day in question. JH agreed that she had seen the appellant with a tablet previously when he conducted bible study with the complainant’s brother. The appellant therefore submits that, as the only reason for his presence in the house on this day was bible study, it is a reasonable possibility that he left with his tablet in his hand, making it highly unlikely, if not impossible, for him to have cupped the complainant’s breast in the manner described by JH.
The respondent submits that the Magistrate correctly concluded that there was no evidence to support the appellant’s contention that the alleged sexual activity was impossible as he had objects in his hands at the relevant time. No witness had seen anything in the appellant’s hands on this occasion. The fact that the appellant may have had items with him on previous visits cannot undermine JH’s evidence of what she saw.
Inherent implausibility of sexual activity
The appellant submits that the surrounding circumstances make the indecent assault inherently implausible. In addition to the submission that both PSG and CM would have observed the offending conduct if it occurred, that conduct must be seen as an isolated act which occurred completely out of the blue. There are no uncharged acts, no explanation as to why the act is said to have suddenly occurred, no grooming alleged and no sexual interest alleged. The act is an isolated one, and the Magistrate erred by not scrutinising JH’s evidence with care before acting on it.
Further, upon being confronted by JH, the appellant’s reaction was not one of guilt but rather disbelief. The appellant went inside the house with JH, rather than immediately leaving. Additionally, although the appellant said nothing, he shook his head in disbelief in response to JH’s accusations. Finally, while under arrest the appellant gave the police the pin code to his phone with the knowledge that the police would analyse it for all contact he had with the complainant.
The respondent submits that there is nothing inherently implausible about the appellant taking a calculated risk to engage in a sexual act with the complainant. There was evidence that put the offending conduct in context and supported the prospect of an ongoing inappropriate relationship between the appellant and the complainant. This included the appellant buying the complainant a mobile phone and laptop, the appellant calling the complainant frequently on that phone at various times of day, the complainant talking about a “secret boyfriend” for some time, and the complainant having developed much affection for the appellant as he had been a “very big part” of her life from a young age.
While the appellant contends that his reaction upon being confronted by JH suggested his innocence, the respondent submits that there was no evidence that the appellant shook his head in disbelief at JH’s allegations. Rather, the evidence was that the appellant stood looking at the ground while nodding and agreeing with JH and shaking his head in disbelief that JH had caught him red handed.
Consideration as to whether sexual activity proven
In accordance with r 286 of the Supreme Court Civil Rules 2006 (SA) this appeal is by way of a rehearing. An appeal by way of rehearing is effectively a trial over again on the evidence used in the Magistrates Court. While the Court may receive fresh or further evidence on the appeal, permission to introduce additional evidence has not been sought. The Court must independently review the evidence and carefully scrutinize the findings made by the Magistrate. The fundamental task of the Court on appeal is to satisfy itself that there was no miscarriage of justice.
The Court must make due allowance for the advantage held by the Magistrate in seeing and hearing the evidence at trial. The Court must recognise that it did not hear or see the witnesses and it should not interfere with findings of fact made by the Magistrate unless they are shown to be wrong by “incontrovertible facts or uncontested testimony”, are “glaringly improbable” or “contrary to compelling inferences”.[2]
[2] Fox v Percy (2003) 214 CLR 118 at 128 [28]-[29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at 558-559 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).
The key element in the Magistrate’s finding that the alleged sexual activity had occurred was his Honour’s conclusion that JH was a truthful and reliable witness. Although some discrepancies had been identified between her oral evidence and her earlier witness statement, the differences were minor. Importantly, the Magistrate accepted that JH had seen the appellant holding and sucking the complainant’s left breast.
The other complaints made by the appellant about the evidence of JH have been satisfactorily addressed by the respondent. I am not persuaded that the Magistrate erred in finding JH to be a truthful and reliable witness. In my view, his Honour carefully analysed the evidence as a whole before concluding that the incident had occurred as described by JH.
I also consider that the appellant has not identified any error by the Magistrate in finding that BH was unable to see the sexual activity witnessed by his wife even though he was only a short distance behind her. The evidence of both JH and BH was that his view was blocked by the wall adjacent to the porch. However, while he could not see what was happening, BH did hear his wife’s immediate outraged yelling.
In my view there is no substance to the appellant’s complaint that if the activity described by JH had occurred it would have been seen by CM through his bedroom window. There was no admissible evidence that CM was in his bedroom at the relevant time and also no evidence that the blind of his bedroom window was up. Moreover, the evidence of JH was that she saw CM cooking in the kitchen.
I also consider that there is no merit in the appellant’s complaint that if the sexual activity occurred PSG must have been able to see it through frosted glass in the front door from where he was watching television. The weight of the evidence concerning the front door suggests that it was not possible to see clearly through the frosted glass. That is, of course, the object of installing frosted glass.
I am also not persuaded that the Magistrate erred by rejecting the assertion that it was impossible for the appellant to cup the complainant’s breast as he was holding a tablet and other items. No witness saw anything in his hands and what he had carried on previous visits to the complainant’s home could not detract from JH’s evidence of her observations.
I agree with the respondent’s submission that it was not inherently implausible for the appellant to take the risk of engaging in sexual activity with the complainant in the circumstances described by JH. While the activity was certainly risky, the respondent has referred to evidence (at [50] above) that puts the conduct in context.
For the preceding reasons, I reject the appellant’s contentions that the Magistrate erred in finding beyond reasonable doubt that the appellant engaged in the sexual activity with the complainant described by JH in her evidence.[3] It is therefore necessary to consider whether the Magistrate erred by finding that the complainant was not capable of freely and voluntarily agreeing to engage in sexual activity with the appellant.
[3] M v The Queen (1994) 181 CLR 487.
Whether complainant capable of freely and voluntarily agreeing to sexual activity
Most of the evidence about the complainant’s intellectual disability and her capacity to consent to sexual activity was provided by a forensic psychologist, Mr Luke Broomhall. However, some of the evidence given by the complainant’s family was also relevant to those issues.
The evidence of Mr Broomhall
Mr Broomhall interviewed the complainant at the request of police to provide an expert opinion on her intellectual disability and whether that affected her ability to consent to sexual activity, in particular the act alleged by the prosecution. While Mr Broomhall saw the complainant on only one occasion, he provided three reports dated 7 July 2017, 16 October 2017 and 12 June 2018. Mr Broomhall also gave evidence at trial and his three reports were tendered as evidence.
Mr Broomhall’s report of 7 July 2017
In his first and primary report, dated 7 July 2017, Mr Broomhall assessed the complainant’s level of intellectual and adaptive functioning as being “in early primary school range (5-9 years of age)” and assessed her Full Scale IQ to be 42.[4] Her IQ was in the extremely low range and less than the 0.1 percentile compared with peers.
[4] Mr Broomhall applied the Wechsler Abbreviated Scale of Intelligence, Second Edition.
The complainant was accompanied by her grandmother, PAG, to the appointment with Mr Broomhall. She insisted that PAG remain for the assessment. PAG provided collateral information, and in the opinion of Mr Broomhall, PAG interacted appropriately by allowing the complainant to answer questions. PAG only provided responses when prompted.
Mr Broomhall reported that the complainant initially presented as a “very shy, quite immature young woman given her chronological age.” She carried a shopping bag containing about six large soft toys representing characters from the children’s television program “Paw Patrol”. Mr Broomhall noted that this program is aimed at preschool and early school aged children. She was initially guarded and withdrawn, frequently hugged the soft toys and buried her head in them. Her initial poor eye contact improved as rapport was developed. However, later in the assessment she reverted to clutching her toys and avoiding eye contact when questions were asked about the nature of her sexual history, boyfriends and any mention of the appellant’s first name.
The complainant had always undertaken special schooling. She is engaged in sheltered employment. While she said that she had “heaps of friends at work”, she rarely sees these people out of work. She plays with her X-Box and assists her grandmother with household chores. She receives a disability pension and also payment for her work with the sheltered employer but could not say how much money she receives from either source. She buys her own lunch using $50 allocated by her grandparents at the start of the week. She attends to her personal hygiene independently and also dresses herself.
The complainant’s grandmother, PAG, informed Mr Broomhall that the complainant could be warm and friendly with close family members but was generally quiet, timid and avoided social contact. PAG stated that the complainant was not aware of how to make correct change when buying an item, nor did she understand which denomination note she should produce to pay for items. She did not always know when she had to wait for change.
Mr Broomhall observed that the complainant:
has few friends and can interact in new interpersonal situations in a very immature and avoidant manner. There were indicators of difficulties with the perception and interpretation of social cues and in relationships, social judgment and decision making.
Mr Broomhall indicated that the complainant met the diagnostic criteria for an intellectual disability under DSM-V. Her disability was at the moderate level of intellectual impairment with accompanying deficits in cognitive functioning, verbal reasoning, abstract reasoning and managing social relationships.
Mr Broomhall reported that due to the complainant’s unwillingness to engage in discussion, difficulties arose in assessing the complainant’s understanding of the nature of sexual intercourse and in obtaining a response to questions regarding sexual intimacy or the possible consequences of sexual intercourse. After the consultation he sought the assistance of PAG by emailing her a list of questions to ask the complainant. However, the complainant was unwilling to discuss any of the questions put to her by PAG.
Mr Broomhall reported that research indicated that the most important points for demonstrating capacity to consent to sexual relationships were:
· The individual can say or demonstrate “no”;
· The individual knows that having intercourse can result in pregnancy;
· The individual can make an informed choice when given options;
· The individual knows that having intercourse or other sexual relations can result in obtaining a disease;
· The individual can differentiate between appropriate and inappropriate times and places to engage in intimate relationships;
· The individual can recognise individuals or situations which might be a threat to him or her;
· The individual will stop behaviour if another person tells him or her “no”.
In the absence of direct responses by the complainant in relation to these criteria, it was difficult for Mr Broomhall to clearly establish her understanding and attitude to these issues.
Mr Broomhall also reported that in recent decades there had been a widening acceptance that persons with an intellectual disability have rights in relation to the recognition of their sexual needs. In his view, the issue of consent addresses the balance between the protection of vulnerable persons and autonomy in their decision making and the right to be a sexualised human being.
Mr Broomhall observed in relation to the complainant’s ability to consent to sexual activity that:
there were particular concerns related to [the complainant’s] ability to recognise individuals or situations which might be a threat to her, and that she had the right to say no if she wanted an individual to stop sexualised behaviours. I would be particularly concerned regarding [the complainant’s] social naïveté, and in my opinion she presented with hallmark traits of such social naïveté, and given her intellectual capacity and lacking in social skills and awareness, was particularly vulnerable to being taken advantage of in a sexual manner.
In my opinion, [the complainant] was unable, by virtue of her intellectual disability and adaptive functioning, to freely and voluntarily consent to sexual activity in the context of the alleged behaviours outlined in the current charges.
Mr Broomhall’s report of 16 October 2017
Mr Broomhall provided his second report, dated 16 October 2017, after being supplied with a DVD recording of the interview between police officers and the complainant on 24 November 2016. Mr Broomhall did not alter his previous opinion as a result of considering this further information. It remained his opinion that the complainant “was unable to give consent to sexual activity in the context of the alleged behaviours outlined in the current charges.”
Mr Broomhall’s report of 12 June 2018
Mr Broomhall provided his third and final report, dated 12 June 2018, after being supplied with records of the complainant’s history of access to YouTube material of a sexual nature and memes saved on her phone. The YouTube material ranged from information about sexual positions and activities to advice about pregnancy and birth control. Some of the sites had been visited on many occasions. The memes largely related to persons being in love or to sexual activity.
Mr Broomhall reiterated that the complainant had not provided answers to his questions about boyfriends, relationships and sexuality. Thus, he was unable to gather any direct information as to what she does or does not “know” in relation to key aspects of her understanding of sexual matters that affected her capacity to consent. However, when conducting a forensic psychological assessment, information obtained from the subject at interview forms only part of the information reviewed in forming an expert opinion. Collateral information may lead to a conclusion and opinion contrary to the evidence provided at interview by the subject. In preparing his opinion he had relied not only on the information provided by the complainant, but also her behaviour at the interview, psychometric test results, literature relevant to the area, collateral reports provided by her grandmother, PAG, and reports from previous psychological assessments. He then commented:
[w]hile the true nature of what [the complainant] may not be able to be ‘known’ for certain from her self-report, I am confident that the collateral information provides sufficient information to conclude what is most likely that she ‘knows’ in regards to sexualised behaviours in order to provide an opinion relating to her capacity to provide consent.
After having reviewed the professional literature referred to in his report of 7 July 2017, Mr Broomhall stated that three of the factors referred to in that report were essential to the determination of capacity to consent. The three essential criteria were basic and essential sexual knowledge, understanding the consequences of sexual activity and basic safety skills. He then applied the collateral information about the complainant to draw the following conclusions under those headings.
In relation to the heading “Basic and essential sexual knowledge”, Mr Broomhill assumed that the complainant can identify parts of the female anatomy. Her internet search history led him to consider that she could understand aspects of the male anatomy and the basic mechanical aspects of sexual behaviour.
With respect to the heading “Understanding the consequences of sexual activity”, Mr Broomhill’s opinion was that the complainant’s search history relating to pregnancy and birth control was sufficient to conclude that she was aware that sexual intercourse could lead to pregnancy. There was no information as to her knowledge about the possibility of communicable disease.
Mr Broomhill reported that the major concepts underlying the heading of “Basic safety skills” were ability to communicate “no”, recognition of dangerous situations, planning for future events and the ability to make a choice. In relation to these matters, Mr Broomhall expressed the opinion that:
I do not believe [the complainant] is capable of communicating “no” nor of being able to effectively recognise or manage situations which may be a threat to her. She clearly lacks the cognitive capacity to abstract information and problem solve novel situations. There are no indications of experience of sexual or romantic relationships. Her web searches clearly display the complex presentation of a physically mature woman interested in exploring sexuality (albeit in a manner reflective of her intellectual capacity), but a childlike intellect and emotional state (web searches regarding “Paw Patrol”). There is no evidence that [the complainant’s] web searches included content regarding consent to sexual activity.
[The complainant’s] inability to demonstrate “no” would in my view extend to any sexual relationship. I believe [the complainant] would not be able to say “no” if she was uncomfortable with sexualised behaviour which was occurring even if the relationship was one seemingly peer-based or even seemingly initiated by her. [The complainant] would most likely, in the context of encountering behaviours with which she was not comfortable, acquiesce and “go along” in order to not get in trouble. Her interview behaviour consistently demonstrates that [the complainant] shuts down in order to avoid unpleasant situations or situations she does not comprehend. In my opinion, this tendency demonstrated by [the complainant] would be particularly prominent where there is a power imbalance in the relationship (such as a carer, family member, supervisor or trusted family friend).
Mr Broomhall’s oral evidence
Mr Broomhall gave substantial oral evidence at trial. To some extent that evidence modified the views he had expressed in his written reports. He stated in cross-examination that the internet searches conducted by the complainant led him to assume that she had sexual interest and desires. However, he was uncertain what her motivation was in accessing the particular sites. The searches may reflect a desire or motivation to have sex or might relate to her motivation to understand sex.
Mr Broomhall also acknowledged in cross-examination that the complainant’s internet enquiries into methods of birth control indicated her awareness that engaging in sexual intercourse may lead to pregnancy. Because she would not speak to him, he did not know whether she understood that sexual activity might result in a sexually transmitted disease.
After being asked questions in cross-examination about an incident that had occurred, apparently when the complainant was a teenager, when she had run away after being kissed on the arm by a boy, Mr Broomhall was asked a series of questions about whether the complainant may have consented to the sexual activity that was the subject of the charge before the Court. The cross-examination was as follows:
Q– now when she’s older, she’s moaning pleasurably and holding him on the arm; when she’s younger she’s having an anxiety attack and running away in a fight or flight response.
AYes.
QAre those two consistent in any way, is it possible that she was consenting to this type of behaviour on this occasion, given that we’ve heard from the only witness that has actually given direct evidence in this trial.
ASorry, I don’t have all the information about the context in order to be able to answer the question about whether she was consenting in this particular event.
QSo that’s a possibility despite your opinion that, from the information you were given at the time – you were only given what you were given – you’re of the view that she wouldn’t be able to consent, but it might be a possibility that in the circumstances of this particular case, that she might have been able to consent.
AI’d be more looking at the possibility that she was in a situation where she felt that she didn’t have any choice but to consent, given the power differential that was involved in what I understand of the relationship between the victim and the accused.
At a later point in the cross-examination after an interchange between the Magistrate and counsel for the appellant as to whether the latter was correctly putting to Mr Broomhall the evidence given at trial, Mr Broomhall stated:
WITNESS:Sorry your Honour, could I add to that? I would feel more comfortable in being able, if I’m being asked questions about what’s come out of trial, to have an ample opportunity to review that information and consider it in the context of the assessment that I’ve already undertaken. I’m not feeling comfortable being in a position where I’m asked to think on my feet about information that I know very little about.
At a later point the following exchange occurred:
HIS HONOUR: Right, so we’re on the topic of the moaning and the sounds. Perhaps if we could just lock in to that now and see what Mr Broomhall says.
WITNESS:If we’re taking the broader context into consideration when it comes to the subjective opinion from [JH] about the moaning, I would consider the age differential between the accused and the victim, the perhaps unusual nature of the prospect of a relationship there give her relative, well from the evidence that I’ve been provided with, her relative inexperience when it comes to relationships, which would also lead me to have concerns around this subjective opinion given by [JH] about what moaning entailed, whether it was pleasurable moaning or whether it was some other form of protest perhaps.
After a further discussion between the Magistrate and Mr Broomhall about the lack of information concerning the incident when the complainant had been kissed on the arm by a boy, the cross-examination continued as follows:
QAnd you place importance upon it [i.e. the arm kissing incident] implying that she’s unable to consent. You refer to it in your report.
AYes.
QYou did place importance upon it. The Court might not but you did in reaching your opinion.
AWhat it also illustrates is that there’s no other information to go on. There is an absence of relationship history.
QBut that doesn’t mean that somehow you then automatically jump to the assumption that she’s unable to consent. Wouldn’t you take a more cautious approach.
AIt certainly puts it in the frame in terms of concerns because usually in terms of normal psycho-sexual development and people would show up aggression in their sexual curiosity and then kissing, touching, fondling and there would be sort of a notable timeline of aggression rather than, to use your words, to jump into a sexualised relationship with someone who’s not a peer or an equal intellectually.
Later in the cross-examination Mr Broomhall was asked:
QCan I ask this. Is it the case that for [the complainant] there might be some areas where she can consent to sexual activity.
AYes.
QWhy do you say that.
AShe is a physically mature woman who has sexual desires and appetites which shouldn’t be bound unreasonably.
And later:
ASo to answer your question, yes, I think she is – she’s capable of consenting to sexual exploration within the context of a safe preferably peer based relationship.
After further questions about the complainant having sent a message saying “I love you” to AP, another worker at her place of sheltered employment, the cross‑examination proceeded:
QSo you do see what I mean, like the question is, she’s capable of acting in a physical way.
ANo, look, I still don’t think that’s clear. I’m still not convinced that’s clear. Sending “I love you” as a – even as a parroted form of being able to communicate an emotion, it can be very immature and not show any kind of understanding of the deeper concepts of love and I would say the same about the internet searches. Just because she’s searched those things doesn’t necessarily – it’s hard to know what she understood about exactly what she saw and what she took out of it. So to say that she acts in a sexualised way, I still think I’m not quite there.
At a later point in cross-examination Mr Broomhall was asked as follows:
QCan she express her emotions to someone else.
ACan she express her emotions to someone else?
QYes.
AContext. Who believe –
QWas she capable of giving someone a hug if she wants to.
AIs she capable physically?
QYeah.
AWell, yes.
QYes.
APhysically –
QYeah.
A– she can put her arm around someone?
QYes.
AYes but whether she –
QPhysically. I’m not asking about your ultimate opinion –
ANo, no, no.
Q– in your report.
ANo, I’m sorry, I’m sorry. I’m differentiating between emotionally, her motivation to do so and her understanding of what that might mean or the risk that she may put herself in doing – in undertaking such behaviour.
QNot risk. Risk is a broader compass. You know, someone else making a judgment as to whether it’s a risky situation. I’m not asking about her motivation. I’m not asking about her understanding. She can simply act in a way that other people might interpret to be sexualised. She might act in a way that other people might interpret to be consensual.
AI haven’t seen any evidence to suggest that she would behave in such a way.
QBut you can’t say that she can’t, can you, because it’s certainly nowhere in any of your three reports. You’ve never said that she can’t act in that way in any of your three reports. You’ve limited your reports specifically to the idea that she can’t knowingly and willingly consent. You have to agree with that.
AYes but as you have introduced in your evidence and I’m asked to give an opinion then I will go back and use the same methodology to extrapolate on my viewpoints as well.
QSure.
ASo that I haven’t commented upon it, perhaps I will take the opportunity to do so.
QThe perfect example being that if she were holding the accused in an embrace with her eyes closed and moaning, that that might be interpreted by someone else as their consenting to that behaviour.
AFrom the statement that’s been provided it appears that that was what occurred.
In re-examination, the evidence of Mr Broomhall was as follows:
QIn your report of 12 June 2018 line 24, you state that “[the complainant] would most likely in the context of encountering behaviours with which she was not comfortable acquiesce and go along in order not to get in trouble”.
AYes.
QDoes that translate in the sense of sexual activity in terms of going along with something’s that occurring.
AYes.
At a later point in re-examination Mr Broomhall’s evidence was as follows:
QWith respect to your comments that she would most likely acquiesce or go along with something, if it was the case in sexual activity that the person engaging with her was moaning, her behaviour in also moaning, could it be thought to be in that context in the sense of going along with or acquiescing, parroting as you referred to with respect to the text messaging.
ALook, it’s possible but again I would have to look at that in context in terms of looking at the statement and having time to view that within the context of the full assessment.
QYou did speak about the web history and the fact that it indicated that perhaps that you couldn’t be sure what it did indicate but interest in finding out about sexual activity perhaps, it was put to you that she may have an interest in sexual behaviours. If she does have some interest in sexual behaviours given the web history that has been shown to you and given her intellectual capacity, is she particularly vulnerable to be taken advantage of.
AShe’s particularly vulnerable to be taken advantage of on the basis of her intellectual disability and her social naivety which is part of her intellectual disability.
QHow does that play out with respect to a power imbalance in the relationship.
AWell social naivety, trusting of people who are in power, in power relationships and not being able to abstract information from one context to another so the idea of abstraction is to be able to understand that there are risk based situations out there and then be able to apply that knowledge to a context bound situation. So does that make sense your Honour? Excellent. That ability is quite low in somebody with the intellectual capacity that [the complainant] has demonstrated through assessment and her functional capacity which means that there are concerns then that her inability to abstract from the general to the specific context leads her vulnerable to misinterpret or misunderstand or not fully be able to appreciate the risk that’s involved in certain relationships such as where somebody is in the position of a carer, step-parent, teacher, mentor, any other kind of relationship but isn’t one that is romantic or sexual in nature and involves some form of power imbalance.
QWould an older family friend be in that position.
AI believe so.
The Magistrate’s reasons
The Magistrate found that the complainant was not able to consent to sexual activity due to her mental or intellectual condition. His Honour also found that the appellant knew that the complainant was unable to consent to sexual activity due to the long history of close interaction between the appellant and the complainant.
Submissions as to consent
The appellant’s submissions as to consent
The appellant submits that there was no reliable evidence from Mr Broomhall that the complainant did not have capacity to consent to sexual activity or sexual activity with the appellant on this occasion within the meaning of s 46(3)(e) of the CLCA. The appellant also submits that there was no reliable evidence to prove beyond reasonable doubt that the appellant knew the complainant was unable to consent and was not consenting on this occasion.
The appellant contends that Mr Broomhall did not conclude that the complainant could not consent and could not consent in the circumstances alleged. Mr Broomhall’s evidence was that the complainant can consent to sexual activity, can express her emotions to someone else, is capable of giving someone a hug if she wants to, has sexual interests and desires, acted in a way on this occasion which the appellant interpreted as consenting and might acquiesce or go along with sexual activity even if she were not comfortable.
Mr Broomhall had stated in his evidence that the complainant had acted by way of flight-fight-freeze response when she was younger, when a boy kissed her on the arm and she ran away. He conceded that the complainant holding the appellant in a loving embrace with her eyes closed and moaning was not consistent with a flight-fight-freeze response such that her actions with the appellant could be explained as non-consensual. He also stated that the complainant has an IQ of 42 and that people in this range can have consensual sexual intercourse. The appellant submits that this evidence is contrary to the conclusion that the complainant could not consent.
Alternatively, the appellant submits that, in effect, Mr Broomhall abandoned the opinion expressed in his written reports once he was informed under cross‑examination of the evidence at trial from prosecution witnesses. In particular, he is said to have done so in light of information new to him about how the complainant acted during the sexual activity, and her alleged prior relationship with a co-worker, AP. In abandoning his initial opinion under cross‑examination, Mr Broomhall made several remarks including, notably, that he does not have all the information to express an opinion as to whether the complainant consented on this occasion, that he did not feel comfortable providing an opinion as to whether the complainant was consenting without an opportunity to consider the evidence given at trial, and that this was a very complex and difficult case because he did not have a direct account from the complainant herself.
The appellant observes that Mr Broomhall made clear to the Court that his opinion should not be relied upon without consideration of the evidence which came out at trial and further enquiries regarding the complainant’s past boyfriends and internet searches. Given that the complainant refused to speak with Mr Broomhall or her family about the appellant or anything sexual, there is an incurable unreliability in Mr Broomhall’s evidence which will not improve even if Mr Broomhall had an opportunity to meet further with the complainant.
Alternatively, the appellant submits that Mr Broomhall’s evidence was of little value because he did not base his opinion on facts established at trial, nor did he establish the assumptions upon which his opinion was based. Mr Broomhall’s opinion about consent was based on collateral information which was not proven as fact at the trial. His opinion was also provided without regard to essential evidence of the sexual activity itself, in particular evidence that the complainant appeared to be physically consenting. Mr Broomhall conceded in cross‑examination that he had not considered all the necessary evidence to provide the ultimate opinion on whether the complainant was consenting on this occasion.
The appellant further submits that Mr Broomhall based his opinion on an assumption that the complainant had never had a previous boyfriend, when in fact she had a relationship with her co-worker, AP. When this was put to him under cross‑examination, Mr Broomhall conceded a need to “re-evaluate” his opinion and to go back and consider the information in more detail, which the Magistrate did not allow.
The appellant also submits that Mr Broomhall based his opinion on an assumption that the complainant was unable to talk about the sexual contact due to her intellectual disability, as opposed to simply being embarrassed. The complainant had spoken about sexual activity before, but would shut down and become embarrassed (particularly in the presence of her grandmother) if her family spoke of her having a boyfriend, which she was not allowed to have. The appellant submits that the Magistrate erred by failing to consider this evidence, despite written submissions on the topic.
The appellant submits that Mr Broomhall’s opinion was also based, in part, on the fact that the complainant was illiterate. However, the evidence of her internet searches for sexual material demonstrates that she is not entirely illiterate.
A further attack by the appellant on Mr Broomhall’s opinion is based on the complainant being incapable of communicating that she does not consent. Mr Broomhall expressed this opinion in his written reports, but failed to state that he meant the word “no” in the context of dangerous sexual encounters. He only qualified his answer after being shown the transcript of the complainant’s interview with police where she clearly said “no” multiple times. Mr Broomhall’s evidence that the complainant cannot communicate “no” in sexual situations should therefore be treated with caution. Further, while all witnesses claimed in their evidence-in-chief that the complainant could not assert “no”, cross‑examination showed that the witnesses had exaggerated the position so as to suggest that she was not capable of exercising her freedom of choice, when in fact she regularly did so.
Mr Broomhall had no evidence that the complainant can or cannot say “no” in sexual situations. There is no direct evidence from the complainant and the evidence from her family about her understanding of sex is entirely unreliable given that they had no knowledge of her internet searches for sexual material. In this light, the appellant submits all information given to Mr Broomhall in respect of the complainant’s inability to say “no” was incorrect.
The appellant therefore submits that the Magistrate erred in not considering how the differences in the collateral information provided to Mr Broomhall and taken into account in his written reports when compared to the evidence at trial might affect the reliability of his ultimate conclusion.
The appellant also submits that the Magistrate erred in finding beyond reasonable doubt that the appellant knew that the complainant was unable to consent to sexual activity due to the long history of close interaction between the appellant and complainant. This finding is contrary to the evidence of Mr Broomhall that the complainant would be able to consent to sexual activity in some situations.
Mr Broomhall gave evidence that the complainant may on some occasions be able to consent to sexual activity, as “[s]he is a physically mature woman who has sexual desires and appetites which shouldn’t be bound unreasonably.” However, the Magistrate found that it would be obvious to the appellant that she could not consent. Such a finding is in error and not based on the evidence provided by Mr Broomhall.
As the Magistrate found that the complainant could never consent to sexual activity, he did not go on to consider whether the complainant was capable of consenting on the occasion in question, nor to consider whether the appellant knew that she was not capable of consenting on the occasion in question. The appellant therefore submits that the guilty verdict stands contrary to the evidence and was unsafe and unsatisfactory.
The respondent’s submissions as to consent
The respondent submits that the fact that a person understands the nature and character of the act of sexual activity, does not necessarily establish a capacity to give a free and voluntary agreement. The ability to understand and communicate a right of refusal is important in this respect.[5] Further, the fact that the appellant was in a position of authority over the complainant is a factor that, as a matter of common human understanding, will also be relevant to the question of free and voluntary agreement.
[5] R v Mobilo [1991] 1 VR 339 at 351 (Crockett, McGarvie and Beach JJ); R v Eastwood (1998) 114 A Crim R 448 at 456-457 [32] (Phillips CJ).
Mr Broomhall gave expert evidence regarding the complainant’s capacity to give free and willing consent. It is submitted that his conclusion, which was in turn later adopted by the Magistrate, was that the complainant was:
by impact of her extremely low intellectual functioning and associated deficits (most notably abstract reasoning, novel problem solving and social naivety), unable to demonstrate “no” in situations of a sexualised nature or to effectively recognise situations which were a potential threat. This would be particularly prominent in situations which involved a power imbalance … .
On this basis the Magistrate concluded beyond reasonable doubt that the complainant was, by reason of her mental disability, unable to give free and willing agreement to the appellant cupping and placing his mouth on her breast.
The respondent accepts that Mr Broomhall’s evidence regarding the complainant’s capacity to consent to sexual activity was guarded, in that he stated that “[s]he is a physically mature woman who has sexual desires and appetites which shouldn’t be bound unreasonably” and that “she’s capable of consenting to sexual exploration within the context of a safe preferably peer based relationship.” However, Mr Broomhall’s view was that “jump[ing] into a sexualised relationship with someone who’s not a peer or an equal intellectually” was not consistent with the usual psychosexual development of someone with an intellectual disability. Additionally, Mr Broomhall’s written opinion that the complainant’s capacity to communicate “no” would be impaired even in a seemingly peer based and self-initiated relationship, was not undermined in cross‑examination and still remained. The respondent notes an important distinction between subjective consent (i.e. wanting to engage in sexual activity) and legal consent under s 46 (i.e. having capacity to freely and willingly agree to sexual activity, including understanding the option to say “no”).
It was not for Mr Broomhall to give the ultimate opinion on whether the complainant was consenting on this occasion, but rather for the Magistrate to do so having heard the evidence at trial. The respondent submits that the basis for Mr Broomhall’s opinion was proved sufficiently to support its admissibility. Mr Broomhall did not “abandon” his opinion under cross‑examination. The appellant misstates the evidence at trial, and the evidence as it was put to Mr Broomhall.
In respect of evidence regarding the supposed “relationship” between the complainant and her workmate AP, the respondent submits that the evidence was that AP was “chasing her”, or “stalking her”, and that the complainant “was upset because he was hounding her at work”. This was not, as the appellant suggests, evidence that the complainant had previous boyfriends contrary to Mr Broomhall’s conclusion that there were no indications of the complainant having sexual or romantic experience.
While Mr Broomhall did accept that the complainant understood what sexual activity involved and had sexual interests, the respondent submits that the appellant’s criticisms do not bear significantly upon the core of Mr Broomhall’s opinion, being the complainant’s ability to understand her right to refuse and communicate her refusal.
The respondent submits that Mr Broomhall’s written opinion was not that the complainant was incapable of communicating the word “no”, nor did Mr Broomhall seek to qualify his answer only after cross‑examination by limiting it to sexual situations. Rather, Mr Broomhall’s written opinion was that the complainant was “unable to demonstrate ‘no’ in situations of a sexualised nature”. This was consistent in Mr Broomhall’s oral evidence, in that he stated that the complainant’s “ability to be able to say either no or to correct information is going to be really context bound … she would be able to say no to a glass of water or a ham sandwich if she doesn’t want one.”
The respondent submits that, as a matter of common sense, the complainant’s ability to say “no” in simple everyday interactions with a carer cannot be extrapolated to the more complex and emotionally nuanced circumstances of a covert sexual relationship. It was Mr Broomhall’s expert evidence that the evidence was not “contradictory” of his opinion, which the Magistrate accepted based upon observation of Mr Broomhall under cross‑examination. There was no impediment to the Magistrate doing so.
The respondent submits that, although the appellant did not give evidence, the evidence at trial overwhelmingly established the appellant’s knowledge that the complainant was unable to give free and willing agreement by reason of her disability.
The respondent submits that the appellant was in a position where he must have observed that the complainant appears at the intellectual level of a 12 year old or even younger. The appellant had been a close family friend and known the complainant since she was approximately three years of age, seeing her up to four times per week. It can be inferred that the appellant was aware of the complainant’s diagnosed intellectual disability, and would have observed her corresponding limitations such as inability to manage money, curling into the foetal position in social situations, interest in child-like activities (such as watching cartoons, taking teddies with her when going out, and getting her face painted), and her “suggestible” nature.
Consideration of the issue of consent
An appeal against a decision of a Magistrate proceeds by way of rehearing. This Court is required to conduct a real and independent review of the evidence received by the Magistrate and come to its own conclusions.[6]
[6] Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [38]-[39] (White J); Pol v City of Port Adelaide Enfield [2017] SASC 116 at [15] (Nicholson J).
The appellant has been convicted of an offence against s 56(1) of the CLCA. Section 56(1) provides that “[a] person who indecently assaults another is guilty of an offence.” That gives rise to two questions. First, when does an assault occur and, secondly, what circumstances make an assault indecent.
An assault will be indecent if it has an element of “sexual lewdness” or a “sexual connotation”.[7] It cannot be doubted that the handling of the complainant’s breast and the sucking of her nipple is indecent in the sense to which I have referred.[8]
[7] R v C, M (2014) 246 A Crim R 21 at 28 [19] (Peek J), 31 [29] (Peek J), 34 [41]-[42] (Blue and Stanley JJ agreeing).
[8] R v Harkin (1989) 38 A Crim R 296 at 301 (Lee CJ at CL), 304 (Wood and Matthews JJ agreeing).
For an indecent assault to occur the conduct must constitute an assault. Thus, the reference in s 56(1) of the CLCA to an indecent assault must be read in conjunction with the reference to “an assault” in s 20 of the CLCA. The relevant provisions of s 20 are as follows:
20—Assault
(1) A person commits an assault if the person, without the consent of another person (the victim)—
(a) intentionally applies force (directly or indirectly) to the victim; or
(b) intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c) threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i) the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii) there is a real possibility that the person will carry out the threat; or
(d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e) accosts or impedes another in a threatening manner.
(2) However—
(a) conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b) conduct that is justified or excused by law cannot amount to an assault.
It is apparent from the chapeau to s 20(1) that, for there to be an assault, the particular action must have occurred without the consent of the other person. The exceptions to that principle contained in s 20(2) are not relevant in the present context. In the case of an alleged indecent assault, whether or not there has been consent must be determined in accordance with s 46 of the CLCA.
Section 46(2) of the CLCA provides that a person consents to sexual activity where they “freely and voluntarily” agree to the sexual activity. Section 46(3) specifies circumstances in which a person is taken not to freely and voluntarily agree. Of present relevance is paragraph (e) of s 46(3) which provides that a person is to be taken not to freely and voluntarily agree to sexual activity if:
(e)the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing;
… .
It is important to note that the test under s 46(3)(e) is not identical to that under s 49(6) of the CLCA. The latter provision imposes a liability for the offence of unlawful sexual intercourse if a person has intercourse with another person knowing that the person “is by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse”.
Because the present case is concerned with an indecent assault rather than unlawful sexual intercourse, the issue is not whether the complainant was able to understand the nature or consequences of sexual intercourse. Instead, the issue is whether the prosecution has proven beyond reasonable doubt that she was incapable of freely and voluntarily agreeing to the actual sexual activity in which she engaged with the appellant.
There is not a great deal of judicial authority where consideration has been given to the question of whether a person with an intellectual disability was incapable of freely and voluntarily agreeing to engage in sexual activity. Mr Broomhall was provided with a copy of the judgment of Judge Nicholson (as he then was) in R v P, LB, where in a trial by judge alone his Honour considered allegations that the defendant had raped and indecently assaulted a young woman who suffered from an intellectual disability.[9] In relation to the charge of rape, his Honour found that he was not persuaded beyond reasonable doubt that the complainant did not understand that the act of penetration proposed and performed by the defendant was of a sexual character. More relevantly for present purposes, Judge Nicholson also found that the massaging and rubbing of the complainant’s breasts by the defendant was not proven beyond reasonable doubt to have occurred without the consent of the complainant. She had suffered some soreness under her breasts and the defendant massaged her breasts with cream so as to make her feel better. She liked the breast massages and made further requests for the defendant to engage in this activity. Judge Nicholson found that the evidence of the complainant showed that she understood that the massaging of her breasts was not for a therapeutic purpose but for some other purpose. His Honour expressed doubt that the complainant would have had much understanding of the notion of sexual foreplay and the role it might assume during the process of two persons preparing to engage in an act of sexual intercourse. However, in his Honour’s view there was a real possibility that the complainant understood that a man and woman might engage in this behaviour because they liked each other and because it gave pleasure. Accordingly, his Honour was not persuaded beyond reasonable doubt that the complainant did not have an understanding that the act was of a sexual or pleasurable character and was not simply therapeutic. Such an understanding would be sufficient to demonstrate the complainant had the capacity to consent to having her breasts fondled. Judge Nicholson referred to the decision of the Victorian Court of Appeal in R v Eastwood as authority for the latter proposition.[10]
[9] [2008] SADC 6.
[10] (1998) 114 A Crim R 448.
In Eastwood, the Victorian Court of Appeal held that the effect of the directions given by the trial Judge was to narrow the ambit of the case actually put by the Crown concerning the lack of capacity of the victim to consent to the sexual acts in question. In other words, the directions given to the jury were unduly favourable to the applicant. In reaching that conclusion, the Court of Appeal referred to the earlier judgments in R v Morgan[11] and R v Mobilio.[12]
[11] [1970] VR 337.
[12] [1991] 1 VR 339.
The Victorian Court of Criminal Appeal stated in Mobilio that:[13]
In our opinion the passage quoted from the judgment of this court in Morgan is to be understood on the background that the law requires that a woman must understand the nature and character of sexual intercourse before she can be capable of consenting to it, but the fact she does understand that does not necessarily establish her capacity to consent. In addition to her knowledge of the nature and character of the act her capacity to make a decision may be relevant. A jury might think that a woman whose intellect was insufficient to enable her to make a refusal of consent or to know that she had a right to refuse consent, lacked the capacity to consent despite her understanding of the nature and character of sexual intercourse. In deciding whether a woman who knew the nature and character of an act of sexual intercourse had the capacity to give a real consent to it, a jury could have regard to such things as her capacity to appreciate that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy and that a decision to consent or not involves questions of the morality or social acceptability of the conduct. We think the court is to be understood as meaning that in saying that those things are not outside the purview of the jury.
(Citations omitted)
[13] Ibid at 351 (Crockett, McGarvie and Beach JJ).
The appellant in Mobilio was a radiographer who had introduced an ultrasound probe into the vagina of several patients for the ostensible purpose of conducting a diagnostic test when actually the sole purpose was his own sexual gratification. While the charge in that case was rape and the facts are very different to the present matter, the observations made by the Victorian Court of Criminal Appeal concerning capacity to give a real consent are relevant to the present matter where the issue is whether the complainant freely and voluntarily agreed to the sexual activity in question.
The considerations identified in Mobilio as being relevant to the assessment of the capacity to give consent under Victorian law are, in my view, also relevant when determining whether the complainant was capable of freely and voluntarily agreeing to sexual activity. The considerations identified in Mobilio are also consistent with the matters referred to by Mr Broomhall and listed at paragraph [72]. More significantly, the Mobilio considerations are also consistent with the three essential criteria referred to by Mr Broomhall and listed at paragraph [79].
Nevertheless, some of the evidence given by Mr Broomhall seems to have been directed more towards the complainant’s understanding of the nature or consequences of sexual intercourse, i.e. the test under s 49(6) rather than under s 46(3)(e). This is particularly apparent with the references by Mr Broomhall to the complainant’s understanding of the risk of pregnancy or sexually transmitted disease. Quite apart from the fact that this element of Mr Broomhall’s evidence seems to have been directed to the wrong test, the handling of the complainant’s breast and the sucking of her nipple did not expose her to any risk of pregnancy or, apparently, disease. Moreover, the complainant’s internet research suggests that she did have some interest in and awareness of the risk of pregnancy, albeit probably quite limited.
The internet searches make clear that the complainant has an interest in sexual matters and some level of understanding. That has been acknowledged by Mr Broomhall. He also acknowledged in cross-examination that the complainant “is a physically mature woman who has sexual desires and appetites which shouldn’t be bound unreasonably.” He also stated “she’s capable of consenting to sexual exploration within the context of a safe preferably peer based relationship.” Mr Broomhall also acknowledged that a person with a similar level of intellectual disability to the complainant is capable of engaging in consensual sexual intercourse.
While Mr Broomhall suggested that there may be some doubt about the matter, the evidence given by JH, and accepted by the Magistrate, that the complainant had her eyes closed and was moaning in a pleasurable way, is a strong indication that she was enjoying the sexual activity with the appellant. Her statement that she was sorry to her aunt, JH, when discovered might tend to suggest that she understood enough to know that her action was inappropriate. However, I place no reliance upon that as Mr Broomhall was not asked about the issue.
I consider that there is some substance in the complaint by the appellant that Mr Broomhall was unable to reliably assess the capacity of the complainant to consent to the sexual activity in which she participated with the appellant, because she did not engage with Mr Broomhall in any meaningful way when she met with him.
In my view there is also substance in the complaint by the appellant that, to a very substantial degree, Mr Broomhall relied upon the information supplied by the complainant’s grandmother, PAG. While I would not ordinarily regard it as problematic for a skilled forensic psychologist to base a report upon his or her own observations, information gained from those in close contact with a complainant and professional literature, it is apparent that PAG was not aware that the complainant had conducted reasonably substantial research on the internet into sexual matters. For that reason, I consider that the reliability of Mr Broomhall’s written reports has been diminished, at least to some extent.
Closely linked to that issue is the suggestion by the appellant that the complainant may have been unwilling to talk to Mr Broomhall about sexual matters because of embarrassment, particularly in the presence of her grandmother, rather than because it was beyond her intellectual capacity to discuss such issues. The tenor of the evidence about the complainant’s significant level of social immaturity and limited intellect suggests to me that the two issues may possibly be inextricably linked, i.e. her embarrassment (if it is that) may be a product of the deficiencies in her understanding and social skills. Whatever the cause of the complainant’s refusal to discuss her understanding of sexual matters with Mr Broomhall, her unwillingness to engage with him does diminish, at least to some degree, the weight that may be attached to his evidence.
In addition to the preceding matters, the responses given by Mr Broomhall to questions asked in cross‑examination and referred to at [85], [86], [89], [90] and [91] also cause me to hold some doubt that the prosecution has proven that the complainant was incapable of freely and voluntarily agreeing to the particular sexual activity.
The several issues to which I have referred at [133] to [139] in relation to the evidence of Mr Broomhall cause me to hold a reasonable doubt that the complainant was incapable of freely and voluntarily agreeing to the sexual activity in which she engaged with the appellant. I consider that the Magistrate should have found that the prosecution had not proven beyond reasonable doubt that the complainant was incapable of freely and voluntarily agreeing to the relevant sexual activity. Because of that conclusion it is necessary to uphold the appeal against conviction. That makes it unnecessary to consider the appeal against sentence.
I stress that, like the Magistrate, I am satisfied beyond reasonable doubt that the appellant did handle the complainant’s breast and suck her nipple as described by her aunt, JH. The basis for my decision is that, after careful consideration of the evidence given by Mr Broomhall, there is a reasonable doubt in my mind as to whether the complainant was incapable of freely and voluntarily agreeing to participate in that sexual activity.
Given my finding, I think it appropriate to refer to the observations made by Judge Nicholson (as he then was) in R v P, LB in relation to a similar situation concerning an unsuccessful prosecution for a quite similar indecent assault of a young woman with an intellectual disability.[14] His Honour stated:[15]
I add that this acquittal does not necessarily mean that the accused did not take unfair advantage of the complainant. It is not my task to make a finding either way on this issue. The acquittal arises because the prosecution has failed to prove the required subjective elements (from the complainant’s perspective) of each of the three offences charged. It is quite likely that the complainant had a very imperfect understanding of the nature and consequences of the activities in which she engaged with the accused, particularly the act of sexual intercourse, but so do many “ordinary” persons who are not intellectually disabled. It would be inappropriate to discuss in these reasons questions of sexual morality or what the general community may regard as proper or improper in circumstances such as those that arose in this trial. The criminal law does not prohibit, outright, acts of sexual intercourse with an intellectually disabled adult person. In order to make out a criminal offence, the prosecution must prove beyond reasonable doubt each of the elements of the relevant offence including any subjective elements. In this difficult case the crown has been unable to do this.
[14] [2008] SADC 6.
[15] Ibid at [99].
I agree with those observations and consider them to be highly apposite to the present case.[16]
[16] Similar observations were made by White J in R v Richardson (Unreported, Supreme Court of South Australia, King CJ, White and Mohr JJ, 20 June 1990, Judgment No 2321).
Conclusion
I uphold the appeal against conviction. It is therefore not necessary to consider the appeal against sentence.
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