Pafitis v The Queen
[2000] TASSC 52
•29 May 2000
[2000] TASSC 52
CITATION: Pafitis v R [2000] TASSC 52
PARTIES: PAFITIS, Aris Demetrios
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 111/1999
DELIVERED ON: 29 May 2000
DELIVERED AT: Hobart
HEARING DATE: 20, 21 March 2000
JUDGMENT OF: Cox CJ, Crawford J, Slicer J
CATCHWORDS:
Criminal Law - Particular offences - Other offences against the person - Sexual offences - Rape and sexual assault - Consent - General principle - Direction to jury - Whether complainant overborne by nature or position of the accused - Issue not raised by evidence - Direction inappropriate.
Criminal Code (Tas), s2A(2)(b).
Aust Dig Criminal Law [151]
REPRESENTATION:
Counsel:
Appellant: D Grace QC, A I Gaggin
Respondent: M A Stoddart
Solicitors:
Appellant: Jennings Elliott
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 52
Number of paragraphs: 27
Serial No 52/2000
File No CCA 111/1999
ARIS DEMETRIOS PAFITIS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
CRAWFORD J
SLICER J
29 May 2000
Orders of the Court
See addendum.
Serial No 52/2000
File No CCA 111/1999
ARIS DEMETRIOS PAFITIS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
29 May 2000
On 22 March 2000 at the conclusion of argument on all save one of the grounds of appeal which was then adjourned to Second Term, we indicated that we were of the view that ground 1 had been made out and that the appellant's conviction of rape on counts 1 and 2 of the indictment could not stand. We said that we would publish our reasons at a later time and that we would not make any formal orders as to the disposition of the appeal in respect of the other counts of which the appellant was convicted until the other grounds of appeal had been resolved. These are the reasons for the view I took in respect of counts 1 and 2.
The appellant was indicted on three counts of rape at Taroona on 22 May 1998 and on three counts of the crime of having sexual intercourse with a young person under the age of 17 years on three separate occasions between 29 June 1998 and 18 July 1998. The complainant was 16 years old at all material times and attained the age of 17 years on 16 August 1998. The appellant was 39 years old. The appellant did not dispute that intercourse occurred between him and the complainant twice on the night of 22 May, but he disputed that the complainant had not consented to those acts. He denied that sexual intercourse had occurred three times as alleged by her and his acquittal on the third count shows that the jury were not satisfied that that had in fact occurred on the third occasion. They returned a verdict of guilty on the first two counts of rape.
The appellant was the proprietor of a Hobart café. The complainant gave evidence that one of her sisters had previously worked part time at the café and that her father was acquainted with the appellant. Her father, in her presence, had asked the appellant if there was any work available for the complainant and on being told that she was 16, he had told her to come back when she was 18. Not long after, however, she was engaged as a waitress working each Saturday. On 22 May 1998, the day before she was to start work at the café, she agreed to babysit the appellant's two young daughters at the home of his former wife at Taroona. The arrangement, made with the knowledge and approval of her family, was that she would go to this home at about 5pm and stay the night there on a couch in the loungeroom. The appellant's former wife would be away the whole time, but the appellant would attend an evening function, return there late, sleep the night there and bring the complainant to the café the following morning. She was driven there by the appellant as arranged. The children's mother left shortly after their arrival and the appellant left about 7pm, indicating that he would be back very late. The children went to bed about 8pm and the complainant watched television in the loungeroom. At about 9pm the appellant returned unexpectedly, bringing two videos and some wine. He explained that the function he had attended had been boring and so he had left early. He invited her to select one of the videos to view and they both watched it. He offered her a glass of wine and they both had some. Prior to watching the video, she asked him if she should ring her father to come and pick her up as it was still early, but the appellant told her not to worry about it, that she might as well stay the night and that he would take her to the café in the morning.
At one stage, they went out on to a balcony and had a cigarette. After conversation about his youth in South Africa, he asked her if she was a virgin and she said that she did not wish to talk about it. They returned inside and he spoke of his first sexual experience. He then lent over and kissed her, asking her what she was thinking. She replied that he was her boss and that his children were there, that she had a boyfriend and that she "did not want to". He continued to kiss her and said, "Don't worry, no one will find out". He then began to feel her body and attempted to undo her trousers. He took off her top and removed all his own clothing save for his underpants and continued to kiss her. She said she "was responding to the kissing a bit". As he continued to attempt to take off her trousers, she kept saying "No" in a definite, strong voice. He persisted, seeming "blind to the fact that I was saying 'no' and just wouldn't take that for an answer". She said he seemed put out by the fact that she did not want to have sex with him and kept saying things like "you can't say no to me now, look what you've done to me", referring to his erection. She said she felt very awkward and embarrassed by the situation and scared as well. She said, "It was just unbelievable this man who is nearly the same age as my father, his two children were in the next room and he would not take my answer of no". She protested that he did not have a condom, but was told by him that he had been surgically sterilised. They had been standing and he then lowered her onto the couch and proceeded to lie on top of her. By this stage he had got her pants down and she was naked. She said he pinned her down but despite her resistance, he forced her legs apart and entered her. He continued to have sexual intercourse with her for about fifteen minutes, ejaculated inside her and then collapsed on her. He then got towels for them to clean themselves.
Having cleaned herself, she covered herself up with a sleeping bag and remained on the couch. About a quarter of an hour later, he removed the sleeping bag from her and said he wanted to do it again. He again entered her, despite her protest that she was tired and that they had to work in the morning. She said that after repeatedly saying "no" the first time, she did not see any use in arguing with him again and that she did not resist him after that. After that act was completed, he lay with her on the couch for quite a long time, but eventually "started talking dirty again and asked me if I ever had sex from behind before". He then rolled her over on to her stomach and proceeded to enter her vagina from behind. She just lay there and said nothing. Eventually he left the room and went to an adjacent bedroom. In the morning he just acted normally, his two daughters being present, and later took her to work at the café. Asked how keen she was to have the job at the café, she said "Well I'd never had a job before. This was my first employment and I thought that getting a job would be really good". Asked why she had not attempted to leave the house at Taroona before she went to work with him the next morning, she said "because I actually had never been to Taroona before ¾ it was very late ¾ I didn't know if I could ring my parents or not because ¾ I mean, this man was going to be my boss, he had two children, I just didn't know what to do".
She continued to work at the café each Saturday until October 1998. In June and July, three further acts of sexual intercourse were alleged to have occurred at his home in Macquarie Street, Hobart. She claimed they were without her consent, but the Crown indicted for the lesser crime of sexual intercourse with a young person on the basis that an honest belief on reasonable grounds that she was consenting could not be disproved. He pleaded guilty to one such act of intercourse (count 5) but disputed the other acts. The evidence surrounding the last act was so imprecise that the learned trial judge directed an acquittal and the appellant was found guilty on count 4.
The Criminal Code, s2A defines consent in these terms:
"2A ¾ (1) In the Code, unless the contrary intention appears, a reference to consent means a reference to a consent which is freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which the consent is given.
(2) Without limiting the meaning that may otherwise be attributable to the expression "freely given", a consent is freely given where ¾
(a) it is not procured by force, fraud, or threats of any kind;
(b) it is not procured by reason of the person being overborne by the nature or position of another person; or
(c) it is not given by a person so affected by liquor or drugs, or so otherwise affected, as to be incapable of forming a rational opinion upon the matter to which the consent is given."
The complainant's evidence was that in respect of count 1, she had repeatedly protested against his announced intention to have intercourse with her, that she had physically resisted his attempts to remove her clothing, that she had been placed forcibly on the couch and he had lain on top of her, that she had endeavoured to resist his entry by keeping her legs together and that he had overcome this resistance by superior strength, forcing her legs apart by the movement of his own legs. It was a clear case of unequivocally communicated non-consent. According to the complainant's evidence, consent was not given at all. While she admitted that she had not repeated her verbal denials and other forms of resistance on the second and third occasions of intercourse which she alleged, her evidence clearly was that she at no stage consented to intercourse on those occasions either. It was not a case in which there was any basis for saying that consent was given, but not freely given, because it was procured by reason of her being overborne by the nature and position of the appellant.
Ground 1 of the notice of appeal is as follows:
"1That the learned trial Judge erred in law and/or in fact in his directions to the jury concerning consent, in that:
(a) he instructed the jury that the provision of s2A (2) (b) of the Criminal Code, whereby consent is not freely given where it is procured by reason of the person being overborne by the nature or position of another person was 'a very important concept in the context of this trial',
(b) he instructed the jury that the relationship of 'prospective boss or boss' could be very important in the context of this trial,
(c) he advised the members of the jury that they 'might think' that the situation where the complainant had 'just been engaged to do ... part-time work' and 'had then gone babysitting (and) the man who took her babysitting was to be the boss' was the 'sort of situation with which (s2A (2) (b)) might well be primarily concerned' and
(d) he instructed the jury that s2A (2) (b) meant that 'bosses are not entitled to take advantage of their position and the power they have to hire and fire and make things unpleasant for an employee as a means of obtaining sexual favours'
when there was no evidence at the trial from which it could reasonably be concluded that the complainant had consented to sexual intercourse because she had been overborne by the nature or position of the appellant."
The learned trial judge, in a memorandum given to the jury and explained in his summing up, defined consent as follows:
"'Consent' means consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which consent is given.
Consent is not 'freely given' where:
(a) it is procured by force, or threats of any kind;
or
(b)it is procured by reason of the person being overborne by the nature or position of another person;"
Having dealt with par(a) of the memorandum, he said:
"… if you go to paragraph (b) it tells you that consent is not freely given where it is procured by reason of the person being overborne by the nature or position of another person. This is a comparatively recent requirement introduced into the Criminal law and it is probably less than ten years that this was introduced into the concept of consent. And, it would seem to me to be a very important concept in the context of this trial and the evidence that you have heard in this trial because [the complainant] disclaimed any violence being used to her but did describe to you the forces that she saw as acting upon her which she claimed induced her to submit to intercourse with the accused. I will just read you some of the evidence that she gave about that so that you can see the context within which your consideration of consent will obviously be required. Mr Stoddart asked her:
'During this night, on these three occasions that he had sex with you, was he ever forceful in the sense of using violence against you?'… He was not violent but very forceful and very arrogant in the way that he would not listen to what I was saying.'
She said she had pain in the vagina but he had not hurt any other part of her body and when they went to work the following morning, she said that the accused was saying how amazing it was and how good I was and how he had had such a good sleep.
She was then asked
'Did you at any time attempt to leave the house at Taroona before you went to work with him the next morning?'She said 'No, I didn't.'And she said the reason was 'Because I actually had never been to Taroona before, it was very late, I didn't know if I could ring my parents or not because I mean this man was going to be my boss and he had two children. I just didn't know what to do.'
So the relationship of prospective boss or boss could be very important in the context of this trial. She had just been engaged to do this part time work that afternoon and she had then gone baby-sitting, the man who took her baby-sitting was to be the boss. And you might think that it's this sort of situation with which that recent amendment to the Criminal Code that I was mentioning a minute ago might well be primarily concerned. I remind you
Consent is not freely given where it procured by reason of the person (that is the person said to have consented) being overborne by the nature or position of another person.
In other words, in short, bosses are not entitled to take advantage of their position and the power that they have to hire and fire and make things unpleasant for an employee as a means of obtaining sexual favours. That is one gloss that can be put on it and it's plainly the gloss that the Crown has been asking be put on that in your consideration of the evidence in this case."
His Honour's reference to the fact that the appellant "was going to be my boss" which immediately preceded his comment about the importance of the relationship of prospective boss and employee in the context of consent was, with respect, inappropriate because her reference to that relationship was not directed to her reasons for engaging in sexual intercourse, but only to her reasons for not leaving the premises after intercourse had taken place, as she claimed, against her will. She at no stage claimed that he had offered any inducement for her to consent by way of favourable treatment as an employee, nor that the relationship of prospective employer/employee, which was due to and did commence the following day, was mentioned by either of them or in any way operated on her mind at all. The instruction to the jury about par(b) amounted to an invitation to proceed to a finding of lack of freely given consent on a factual basis which was not open on the evidence. Any inference that she was overborne by the nature or position of the appellant, as her employer, was in fact contrary to the Crown case which was that she did not consent at all and had made that lack of consent abundantly clear to the appellant from his first approaches. For these reasons, it is my view that the convictions of rape entered on counts 1 and 2 cannot stand and those counts should be retried.
File No CCA 111/1999
ARIS DEMETRIOS PAFITIS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
29 May 2000
I agree with the reasons of the Chief Justice and what he proposes.
File No CCA 111/1999
ARIS DEMETRIOS PAFITIS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
29 May 2000
These reasons are published following the upholding of an appeal on the basis of ground 1 of the Notice of Appeal, resulting in convictions on counts 1 and 2 of the indictment being quashed. These reasons relate only to those convictions.
The appellant had been charged with crimes of rape and unlawful sexual intercourse with a 16 year old girl between May and July 1998. Counts 1 and 2 of the indictment alleged two acts of rape, said to have occurred on 22 May 1998 at the home of the appellant. The complainant had been employed to look after the children of the appellant and the conduct complained of took place following the appellant's return to the home. The complainant gave cogent evidence to the effect that she did not consent to intercourse, resisted and voiced her refusal to sexual intercourse. The appellant claimed that there had been consensual sex. The factual issue to be determined by the jury was whether it was satisfied beyond reasonable doubt that the complainant did not consent to sexual intercourse. Prosecution and defence put their respective cases on that basis. No suggestion was made by the complainant that she had acceded to the demands of the appellant by reason of age, status, alcohol or fraud. She maintained that clothing was removed by force, that she had told the appellant "no" on more than one occasion and that penetration had been effected by the means of greater physical power of her assailant. She did not resile in any manner from that account during the course of cross-examination. Her following answers clearly show the tenor of her evidence.
"Well I want to suggest to you that you were standing in front of him and you did undo his trousers? ... I did not undo his trousers, he undressed himself and then he was trying to undo mine.
And he did remove your trousers? ... After a lot of disputing the matter, yes he did.
Well again I want to suggest to you, and I must do so, that you didn’t protest about that, you didn’t try to stop him? ... I tried as hard as I could to stop him from getting my trousers down. I did not want to be in that position with him. He did that to me. He took advantage of me. He raped me and I did not let him take my trousers down.
Well I must put to you that at no stage did you say the word no? ... It’s put to me, ohhhhh. So he’s told you that I didn’t say no. That’s the thing, he didn’t listen. I said no so much. He wouldn’t take no for an answer.
Well I suggest to you, you didn’t give no for a response? ... gave no as a response so many times that night that I've lost count, how many times does a person have to say no to sex with a old man like that.
Well that’s the problem about this is it - he’s too old? ... No that’s not the point, I said no the whole time, that just makes it worse.
…
All right. And you - were you fully undressed at this stage? ... Yes.
Did you - when you were saying no, as you say, were you saying that in a loud voice? ... Yes, I was.
Very loud? ... Yes, very definite.
Did you say to him, ‘I’ll yell so loudly I’ll wake the children’? ... No, I didn’t.
Why not? ... Just think of the position I was in. The first time I’d been with this man, his children were there, I was scared shitless of what he was about to do to me and I felt very embarrassed about the whole situation. And what if his children had of come out?
Well he’s hardly likely to carry on raping you in front of his children, is he? Did that occur to you? ... Well then I should have called them out and let them see their father doing that to someone, doing that.
Mm hm. Did it not occur to you to call out so that the children would hear, so he’d be worried that they would hear? ... I didn’t want the children to hear.
No, because you were a willing participant in what was happening? ... That is not true."
The learned trial judge prepared for the benefit of the jury a written memorandum which included a definition of consent which included the following terms:
"'Consent' means consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which consent is given.
Consent is not 'freely given' where:
(a) it is procured by force, or threats of any kind;
or
(b)it is procured by reason of the person being overborne by the nature or position of another person;"
The direction was in accordance with the Criminal Code s2A which defines consent in the following terms:
"2A ¾ (1) In the Code, unless the contrary intention appears, a reference to consent means a reference to a consent which is freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which the consent is given.
(2) Without limiting the meaning that may otherwise be attributable to the expression 'freely given', a consent is freely given where ¾
(a) it is not procured by force, fraud, or threats of any kind;
(b) it is not procured by reason of the person being overborne by the nature or position of another person; or
(c) it is not given by a person so affected by liquor or drugs, or so otherwise affected, as to be incapable of forming a rational opinion upon the matter to which the consent is given."
The Shorter Oxford English Dictionary, 3rd ed, gives to the word, inter alia, the following meaning:
"Voluntary agreement to or acquiescence in what another proposes or desires; compliance, concurrence, permission. Agreement as to a course of action; concord. Agreement in feeling, sympathy; accord."
The statutory definition does not add to that afforded by usage. It does serve to direct attention to refinement or nuance. It may be that the statement by Parliament directed the mind of the reader away from historic or cultural attitudes held by some in relation to sexual conduct. The Minister responsible for the introduction into Parliament of the proposed clause said:
"First, there is the definition of consent. The sexual offences bill expands the definition of 'consent' in section 1 of the Criminal Code in three ways. The amended bill makes it clear that consent is not given where a person is affected by liquor or drugs so as to be incapable of forming a rational opinion upon the matter to which the consent is given. Next, a consent is not freely given where a person is overborne by the nature or position of another person. Lastly, a new provision will establish that where a person suffers grievous bodily harm in connection with a sexual offence that harm will be prima facie evidence of the lack of consent.
…
The Government's approach to the matter of consent is not the approach recommended by the Law Reform Commission. The commission proposed that there be a non-exhaustive list of nine circumstances which, if present, would establish that consent was not fully and freely given. The approach favoured by the commission has been adopted in the Northern Territory and some jurisdictions in the United States. In support of this approach it is said that it reduces the importance of the element of lack of consent and focuses attention on the acts of the accused rather than the mental attitudes of the victim or offender. It is argued that under existing laws injustice is caused to the victim by the difficulty of proving absence of consent and by narrow judicial interpretations of what constitutes a lack of consent.
This bill unashamedly retains lack of consent as the essence of most sexual offences. The wide but general definition of 'consent' in the Government's approach covers the circumstances included in the Law Reform Commission's list of factors which would be considered to vitiate consent. Except where the victim is a young person or where unnatural sexual intercourse or incest is involved, what will have to be shown is that a particular individual did not consent to sexual intercourse. It will only be in exceptional circumstances ¾ where, for example, a person suffers grievous bodily harm ¾ that lack of consent will be presumed.
…
As pointed out by the legal community in disagreeing with this aspect of the Law Reform Commission's proposals, the list of non-consensual situations amounts to little more than examples of the type of evidence, which the prosecution would adduce under the existing law to demonstrate a victim's statement that were (sic) was no consent.
…
Some people may suggest that the definition of consent as proposed by the Government's approach is too broad. They might suggest that it will be too easy for a victim to say that he or she was not consenting. Whilst I do not accept this contention I recognise that certain parts of the definition of consent will require consideration by the judiciary. The judges will decide what is capable in law of constituting an overbearing by virtue of a person's nature of position."
This provision does not extend or alter the nature of the word. Rather, it states circumstances when it can be said consent was truly given. (For a discussion of the development of the law in relation to the question of consent and the attempt in the Queensland Code to simplify the matter, see R v Shaw (1996) 1 Qd R 641, Fitzgerald P at 642 - 644).
The issue for the jury was whether intercourse had occurred without consent. The complainant had told the jury that consent had not been given and its absence manifested by emphatic words and conduct. This was not a case which involved consideration of the inner reasons lying behind passivity or the subtle differences between physical acquiescence and feelings of ambivalence. There is a distinction between exercise of judgment and the absence of consent because the will of the person is overborne.
A draft of that memorandum had been provided to counsel. In his closing statement counsel for the appellant told the jury:
"So, the issue, with respect to counts one and two, is quite simple: Did [the complainant] consent? Or to put it in the way that fits in with the onus and standard of proof, has the Crown satisfied you beyond reasonable doubt, that she did not consent. Or has it satisfied you beyond reasonable doubt that Mr Pafitis didn’t reasonably believe that she was consenting in the circumstances."
and in relation to the memorandum stated:
"You will have before you a Memorandum which will set out a definition of consent and I think Mr. Stoddart has already read it to you at the start of the trial. I submit that there is in part of that definition is that the consent must be freely given and some circumstances will be in the memorandum when the law says it is not freely given. But I would suggest to you that there is no question of that in this case and the reason for that is that her evidence is quite clear, she says she didn’t consent. She says she continually cried out 'No' and objected but she was overborne by force, he was too big and too strong is the thrust of her evidence. Even with that force though she is not saying that she actually consented she says 'I did not consent at all ever' even to the charges that the Crown has seen fit not to put consent in issue, counts 4, 5 and 6. She says she didn't consent to those either so it's not a question of a consent which has not been freely given. I would suggest to you that it's a question of did she actually consent. The defence case is that she did, her case is she did not. It's not that 'I consented but I was made to' that's the sort of situation when somebody holds a gun at the person and the person says 'All right, I'll have sex.' you could see then that's not a freely given consent. But there's no evidence, and she doesn't say that she consented, she says 'I didn't at any stage.' But even if you accept that she didn't in fact consent I would submit to you that if you accept that there's a reasonable possibility that her behaviour, as opposed to her state of mind, was as described by Mr. Pafitis, it must follow that there is a reasonable possibility that he held an honest and reasonable belief that she was consenting."
Counsel for the respondent, also aware of the terms of the memorandum, adopted in part the approach foreshadowed by the learned trial judge, in the following terms:
"… 'No' is not enough. You’d have to be satisfied the rape that she said 'no', and that thereafter her will was overborne by this man. If you’re satisfied that she said 'no', and her will was overborne by this man by his position, by being the day before her first job, by him having given her wine, then you will be satisfied that that act could not be consensual, because the law says 'its not a freely given consent if it’s brought about by a force', and there was a force of some form here, the force of his personality perhaps, or brought about by the position of the person who is seeking the sex, so that the person’s will, to say a free’ yes’ or ‘no’ is crumbled by the identity of the person seeking to have unwanted sex with her."
Counsel for the Crown had addressed the jury after the closing speech for the defence. The Crown case was put on a basis different from that on which the Crown had opened and from the evidence presented by the prosecution. The defence was required to meet a case differently articulated after the conclusion of evidence and closing statement. Had the issues of respective ages, status as employer, alcohol or the overbearing of will been presented as issues to which evidence would be directed, then the defence might well have approached its evidentiary task in a different manner. There might have been greater examination of the respective employment histories and interactions, questions of future expectations and fears. Questions of force of personality, the crumbling of will, the qualitative effect of wine on judgment or appreciation are all valid matters in a consideration of the crime of rape. They are complex, but have little, if any, evidentiary significance in a case where the complainant says that she clearly indicated refusal and that her body was penetrated by the greater force and strength of the assailant. A party is entitled to know the nature of the case brought (R v Torney (1983) 8 A Crim R 437, R v Holden (1990) 56 A Crim R 32; R v King (1985) 17 A Crim R 184 at 187, 189 (on appeal King v R (1986) 161 CLR 423, Dewson J at 432)).
Following the closing speeches by counsel, the learned trial judge explained the terms of the memorandum in the following manner:
"People think that rape consists of intercourse obtained as the result of violence. That is not correct. Rape is intercourse which occurs without consent and there is a big difference or there can be a big difference. Often, of course, the will of the victim is overcome by violence. And that, as I say, is the most common situation that people think about when the question of rape is discussed but it is not a question of violence, it is a question of consent. So, consent is not freely given where it is procured by force or threats of any kind. In other words, an apparent consent or a submission to intercourse following upon force or threats and induced by force or threats is in the eyes of the law not a consent at all. Secondly, if you go to paragraph B it tells you that consent is not freely given where it is procured by reason of the person being overborne by the nature or position of another person. This is a comparatively recent requirement introduced into the Criminal law and it is probably less than ten years that this was introduced into the concept of consent. And, it would seem to me to be a very important concept in the context of this trial and the evidence that you have heard in this trial because [the complainant] disclaimed any violence being used to her but did describe to you the forces that she saw as acting upon her which she claimed induced her to submit to intercourse with the accused. I will just read you some of the evidence that she gave about that so that you can see the context within which your consideration of consent will obviously be required. Mr. Stoddart asked her:
'During this night, on these three occasions that he had sex with you, was he ever forceful in the sense of using violence against you?’ ... He was not violent but very forceful and very arrogant in the way that he would not listen to what I was saying.'
She said she had pain in the vagina but he had not hurt any other part of her body and when they went to work the following morning, she said that the accused was saying how amazing it was and how good I was and how he had had such a good sleep.
She was then asked:
'Did you at any time attempt to leave the house at Taroona before you went to work with him the next morning?" She said "No, I didn't." And she said the reason was "Because I actually had never been to Taroona before, it was very late, I didn't know if I could ring my parents or not because I mean this man was going to be my boss and he had two children. I just didn't know what to do."'
So the relationship of prospective boss or boss could be very important in the context of this trial. She had just been engaged to do this part time work that afternoon and she had then gone baby-sitting, the man who took her baby-sitting was to be the boss. And you might think that it's this sort of situation with which that recent amendment to the Criminal Code that I was mentioning a minute ago might well be primarily concerned. I remind you
Consent is not freely given where it procured by reason of the person (that is the person said to have consented) being overborne by the nature or position of another person.
In other words, in short, bosses are not entitled to take advantage of their position and the power that they have to hire and fire and make things unpleasant for an employee as a means of obtaining sexual favours. That is one gloss that can be put on it and it's plainly the gloss that the Crown has been asking be put on that in your consideration of the evidence in this case."
The introduction of the issue of apparent consent being vitiated by status, personality and the effect of alcohol raised matters not supported by the evidence, and defined the case in a manner not previously presented to the defence and served to distract the jury from the central issue of consent. It raised a complexity unwarranted by the Crown case. That is not to say that there will not be complexities caused by competing elements of the respective cases of the parties. Evidence presented by the defence might require the prosecution to seek an alternative path to conviction and this should be reflected in the summing up by the trial judge. Prosecution witnesses might depart from or fail to come up to proof requiring consideration of different principles of law. Here there was no evidentiary occasion to introduce new elements into the case to be considered by the jury. That introduction created prejudice in the manner stated by Dawson J in King v R (supra) when he said at 432:
"The jury brought in a verdict of guilty against King but acquitted Matthews. King appealed to the New South Wales Court of Criminal Appeal, which allowed his appeal upon the basis that the trial had miscarried when, at the instance of the Crown, the trial judge had introduced for the first time in his summing up the possibility that some person other than Matthews had killed the deceased. The element of surprise involved in this course was held to have resulted in possible prejudice to King's case, his counsel having cross-examined Siemsen and addressed the jury in reliance upon the presentation of a case by the Crown that the person who killed the deceased was Matthews. Had King's counsel known that alternatively Siemsen or some other person unknown to the Crown was alleged to be the actual murderer, he may well have cross-examined or addressed in a different way.
No exception was taken before us to the finding of an irregularity or the quashing of the conviction. Indeed, it may be said that the direction given by the trial judge at the behest of the Crown involved such a change in the course of the trial at such a late stage that inevitably the conviction could not be allowed to stand: see Reg v Laird (1893) 14 NSWR 354; R v Thompson and Gamble (1925) 42 WN (NSW) 71; McManamy v Fleming (1889) 15 VLR 337; Gregory (1981) 77 Cr App R 41, at p 47); Falconer-Atlee (1973) 58 Cr App R 348 at pp 355 - 356); Cross and Channon (1971) 55 Cr App R 540, at pp 545 - 546."
A further problem arises from the introduction of the issues of position and the overbearing of will. That such issues might be complex has been reconfirmed by this court in Crisp v R 94/1990, Cox J at 10.
In R v Shaw (supra) the appellant had been convicted of a crime of the rape of an acquaintance who had agreed to drive him home. She had been raped at a deserted area following her being pushed out of the car and having a knife held at her back. The appellant claimed that the conduct had been consensual. He claimed error by reason that ”the rape charges should [not] have gone to the jury on the basis of both lack of consent and consent obtained by threats and intimidation" and "the trial judge failed to adequately direct the jury as to the evidence relied on by the Crown to constitute threats, intimidation or fear of bodily harm to induce consent". In relation to that contention, Davies and McPherson JJA said at 645:
"By s347 of the Criminal Code rape is defined to mean carnal knowledge of a female 'without her consent or with her consent if it is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm …'. What is meant in this context by 'both limbs' of s347 is that the offence created by the section is, so it was submitted, capable of being divided into two forms of rape, one of which comprises sexual intercourse 'without consent', and the other sexual intercourse with consent which has been obtained by force, threats, intimidation, etc. It was argued that the present case fell within the second class, with the consequence that the prosecution was required to identify each of the acts of force, threats or intimidation said to have been used to obtain the complainant's consent; and that the trial judge was bound to explain this distinction to the jury but had failed to do so.
It is in our view only in exceptional cases that s347 requires that any such distinction be made."
and at 646:
"Under s347 consent refers to a subjective state of mind on the part of the complainant at the time when penetration takes place. It is not in law necessary that the complainant should manifest her dissent, or strictly even that she should say in evidence at the trial that she did not consent to sexual intercourse. Whether or not oral evidence to that effect is needed to prove a charge of rape depends very much on the circumstances. An obvious case where it is not often given is that a young or infant girl, or of a woman who is mentally incapacitated, and so is unable to appreciate the nature or significance of the act or later to give evidence about her state of mind at the time. A more mature and intellectually aware complainant would, on the other hand, ordinarily be expected to testify that she did not consent to the act of sexual intercourse that is charged. Whether or not her evidence to that effect is accepted depends on the impression formed by the jury of her credibility considered in the light primarily of the circumstances at the time of the act complained of as disclosed by all the evidence at the trial.
A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent; or it may furnish some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting to sexual intercourse, and so provide a basis for exemption from criminal responsibility under s24 of the Criminal Code.
In directing a jury on the issue of consent in rape, it is very seldom necessary or even desirable for a trial judge to descend to analysis in this degree of detail."
In a case of claimed force met with a claim of consensual conduct, there is no purpose in a direction requiring consideration of the element, set out in the Code, s2A(b). No "consent" had been procured by "reason of the (complainant) being overborne by the nature of the position of (the accused)." If the jury were not satisfied on the evidence that the account provided by the complainant was accurate, there was no other evidence on which a conviction would be properly recorded. If, on the complainant's evidence, she had not manifested refusal by conduct or words or that she had acquiesced or submitted (Shaw (supra) at 643) because she had been overborne by "the nature or position" of another, then the direction would have been required which assisted the jury in its evaluation of the evidence on the issue. But the ultimate question remained whether intercourse had occurred without the consent of the complainant. In this case, the direction might have led the jury, not satisfied with a particular version of events, to examine the respective positions of the parties. It could not be said that such a process did not lead to a miscarriage.
It is for these reasons that I joined with the other members of the court in upholding the appeal on ground 1 stated in the Notice of Appeal.
ADDENDUM
At the conclusion of proceedings at which the above Reasons for Judgment were delivered, counsel for the appellant sought and was given leave to withdraw the balance of the appeal and the Court made the following Orders:
Appeal in respect of counts 1 and 2 allowed.
Convictions on counts 1 and 2 quashed.
Appellant remanded on bail to the Sittings of the Supreme Court at Hobart on 13 June 2000 for retrial on counts 1 and 2.
Sentence of 4 years and 6 months' imprisonment on the indictment quashed.
Appellant remanded to the above Sittings for re-sentence on counts 4 and 5.
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