R v Andrew Paul Lightfoot Nos. SCCRM 93/539 and SCCRM 93/360 Judgment No. 4345 Number of Pages 14 Criminal Law and Procedure

[1993] SASC 4345

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ (1), MILLHOUSE(2) and OLSSON(3) JJ

CWDS
Criminal law and procedure - appeal against conviction - rape - appellant argued that police failed to give a caution at the appropriate time - evidence revealed that police were only in preliminary investigational stage and arrest of appellant was not imminent - caution not called for - consideration of whether trial judge should have directed that it ought not to convict if appellant mistakenly believed victim consenting - appeal dismissed.
Appeal against sentence - rape - appellant pleaded guilty to assault occasioning actual bodily harm before trial - single sentence of 10 years with 8 year non parole period - sentence imposed manifestly excessive in particular circumstances - appeal allowed - sentence of 6 years with 4 year non parole period substituted. Criminal Law Consolidation Acts 48. R v Dolan (1992) 58 SASR 501; The Queen v Brown (1975) 10 SASR 139 and Holman v The Queen (1970) WAR 2, discussed.

HRNG ADELAIDE, 10 December 1993 #DATE 22:12:1993
Counsel for appellant:     Mr M A Heffernan
Solicitors for appellant:    Heffernan and Co
Counsel for respondent:     Ms W J Abraham

ORDER
Appeal allowed.

JUDGE1 KING CJ The appellant was charged with rape of his girlfriend, to whom I shall refer by her christian name Vicki, and with assault occasioning actual bodily harm to the same person. He pleaded guilty to occasioning actual bodily harm and was tried by judge and jury in the Supreme Court on the charge of rape. He was found guilty and has appealed to this Court against the conviction. 2. The appellant and Vicki had had a sexual relationship for some three years prior to the subject incident. Although Vicki would not acknowledge that there was a de facto relationship, there seems to be no doubt that the appellant virtually lived in the house occupied by Vicki, kept his clothing and other belongings there and slept in the same bed as Vicki on most nights. The relationship was marked by tensions and arguments. By the time of the alleged offence it had reached breaking point. Vicki wished to end the relationship but the appellant was unwilling to see it terminated and unwilling to leave the house. On 8th January 1993 there was an argument between Vicki and the appellant which began when Vicki took exception to the appellant taking her son to the home of the appellant's ex-wife. The accounts given by Vicki and the appellant as to what transpired differ considerably. 3. Vicki's evidence was that she indicated that the relationship was over and that the appellant must leave the house. After considerable argument he said that he would do so. He went outside but then returned and grabbed Vicki by the arm. He pushed her backwards into the bedroom and started undressing her. She said "I don't want to do it". 4. He replied "You never want to do it with me." Vicki struggled and said "You promised me you wouldn't do it again." He said "I also promised that I would never hit you" and then proceeded to hit her with his open hand across the face. Vicki was crying. The appellant removed all her clothes. The appellant spread her legs apart and held her wrists down. In an angry tone he said "Do you hate me yet, do I feel cheap." He asked her to touch his penis and placed his fingers between her legs. He tried to kiss her but she avoided his kisses and he then bit her on the neck. Vicki was screaming and trying to push him away. The appellant said "Shut up or I will bite the skin." He inserted his penis into her vagina and said "Pretend it is somebody else, you might enjoy it." After a couple of minutes the penis came out of the vagina and Vicki kicked the appellant away. He then struck her about six times on the left side of her head and body. The appellant was yelling "Don't ever reject me", he then got up and went to the toilet. Vicki told him to get out of the house and the appellant rang a taxi. The appellant said "If you call the police you will cop it." 5. The appellant gave evidence. He agreed that there was an argument over his taking Vicki's son to his former wife's home. He agreed that after things calmed down he grabbed Vicki and took her into the bedroom. His evidence was that he said "Come with me. I am sick of fighting. I just want to make up." He said that Vicki did not resist. He started to undress her and that she said that "she didn't want to do it this way." He agreed that Vicki was crying. She kept on saying "I don't want to do it this way." He agreed that Vicki took hold of his penis after he asked her to do so. He agreed that he inserted his penis into Vicki's vagina. He said that "She just seemed to be getting a bit more upset about it". He said that he had made no threats. He said that having intercourse with Vicki in this way had "worked before" in the sense, presumably, of making up the quarrel. When she did not respond but became more upset he lost his temper. He commented "I would say probably just a build up of the pressure of our relationship. I just started hitting her." He said that he left the room and then came back in and apologised for hitting her. He asked whether she would like him to go and she said yes. He said that during the act of intercourse he had told her that he was sick of fighting and wanted to make up. He then rang a taxi and left. The appellant denied that he struck Vicki before the act of intercourse. He contended that she had consented, albeit reluctantly, on previous occasions following arguments and that that had been successful in making up the quarrel. He said that it was his belief that she was consenting to the act of intercourse in spite of her upset condition "Because, like I said before, its happened that way before and I didn't think there was anything different." 6. The principal ground of appeal argued by Mr Heffernan, who appeared for the appellant, was that the trial judge ought to have excluded statements made by the appellant to the police because the police had failed to caution him in circumstances which called for the caution. 7. The appellant had returned to the house on the following morning and the police were summoned. Vicki had made her allegation of rape to the police the night before and had been medically examined. Detective Jenkins spoke to the appellant at the house while Detective Clifford was inside the house speaking to Vicki. The conversation between Jenkins and the appellant, as Jenkins related it in evidence, was as follows:
    "I said 'Hello Andrew. Kevin Jenkins. Do you remember me?
    You were a witness for me in that murder trial.' He said 'Yes.
    I recognise you now. How are you.' I said 'Yeah, good. They
    tell me you had some problem here last night?' He said 'Yes.' I
    said 'Vicki has told the police you raped her last night and
    assaulted her. Did you know she had a perforated eardrum?' He
    said 'No, I didn't. Is she saying I raped her?' I said 'Rape is
    when you force someone to have sex with you against their will.
    Do you understand that?' He said 'Yes, I guess I did force her.
    She didn't want to do it.' I said 'Detective Clifford will speak
    with you shortly. Take a seat in the back of the car while we
    get some things sorted out inside. Okay?' He said 'Yes.'" 8. The appellant was arrested in the police car and cautioned. 9. He was taken to the Elizabeth Police Station where a video recording of an interview with him was made. 10. There was a delay before the video room became available and in that time Detective Jenkins prepared notes of his conversation with the appellant. He showed the notes to the appellant and gave him the opportunity to sign them. The appellant disputed the accuracy of the note "Yes, I guess I did force her" and claimed that he had said "I guess you could say that I didn't force her." Detective Jenkins told him that if he had any queries or wanted anything clarified he could do so during the video interview and the appellant signed the notes. At the commencement of the video interview the appellant was cautioned. He was asked to read out Detective Jenkins' notes. He did so but again queried the accuracy of the note. The appellant referred to the line "I guess I did force her" and said "I think I said which I guess you could say, I did force her. I don't think I did force her though." He said that he was not quite sure that he had said what Detective Jenkins attributed to him. 11. In the course of the video interview, the appellant admitted that he had had sexual intercourse with Vicki although she was upset and not responding and kept saying "I don't want to do it this way." He agreed that it was fairly obvious that she didn't want to make love. When asked why he went ahead knowing that she didn't want to, he replied "Because like I said, we had done it once before and things worked out alright and follow up like my goal was to sort all this out you know." He maintained that he had not struck Vicki before sexual intercourse and only did so when he lost his temper due to her lack of response. 12. The principal part of the interview was conducted by Detective Clifford. Towards the end Detective Jenkins took over. His questioning amounted to cross-examination of the appellant as to his state of mind having regard to Vicki's admitted distress and expressed unwillingness "to do it this way". There were quite a number of questions which culminated in the following question and answer.
    "Q. You take her clothes off, she's crying, she's not
    kissing you, she's not responding to you other than to obey
    your commands. Do you think and purely on circumstances of
    last night. Do you think she was a willing sexual partner
    with you.
    A. Suppose not really." 13. I do not think that Mr Heffernan's argument that Detective Jenkins was under an obligation to caution the appellant when he first spoke to him at the house, is tenable. It is true that at that time the police had an allegation of rape of Vicki by the appellant. There was therefore a clear obligation on them not to question the appellant without first giving the caution; R v Dolan
(1992) 167 LSJS 309. Jenkins, however, did not question the appellant. He told the appellant of the allegation of rape but the only question asked was "Did you know she had a perforated eardrum?", which was really a statement in the nature of conveying information. He responded to the appellant's question "Is she saying I raped her?" by giving a definition of rape. I think that it might have been better if he had not made that response having regard to the absence of the caution but I do not think that it can be said that his response was a breech of his obligation. Jenkins had no intention of commencing an interrogation but was merely paving the way for the interrogation by Detective Clifford which would follow. I do not think that a caution was required in those circumstances. The appellant was clearly cautioned before the interrogation began. 14. I think that as a matter of good police procedure, Detective Jenkins should not have permitted the appellant to sign his notes when the appellant was querying the accuracy of portion of them. In my opinion, nothing turned on that in the end. 15. The cross-examination of the appellant towards the end of the video interview has caused me some concern. A police officer is entitled, after a proper caution, to question a suspect with a view to eliciting a confession. Such questioning must be kept within the bounds of reason and moderation. The officer is not obliged to accept the first answer given and is entitled to ask questions not only to clarify but also to probe the answers. He may confront the suspect with evidence which appears to be inconsistent with the answers which the suspect has given. To that extent what might be described as cross-examination is permitted. It is not permissible, however, for a police officer to endeavour to break down a suspect's denials by importunity, pressure or unduly persistent questioning. That type of cross-examination may render a confession involuntary or at least be a ground for its discretionary exclusion. "It is cross-examination in the sense of breaking down the will and extorting admissions by persons who have been questioned by the police that is to be reprehended." R v Lee (1950) 82 CLR 133 at p.155. 16. I think that Detective Jenkins' questioning of the appellant came close to the border of what is permissible. It is saved from transgressing, I think, by the peculiar nature of the answers which the appellant had given. His answers were ambiguous, not to say obscure. He admitted that Vicki was distressed and saying that she didn't want to do it but at the same time appeared to be maintaining that she was consenting. I think that it was permissible in those circumstances for the interrogating police officer to confront the appellant, with some persistence, with what appeared to be the intrinsic inconsistency in his account in order to ascertain what he was really asserting as to his state of mind. I think that the appellant's answers to the police were rightly admitted. 17. The learned trial judge correctly directed the jury as to the mental element of the crime of rape. He correctly explained the meaning of the term "reckless indifference". 18. At the conclusion of the summing up counsel for the defence requested the trial judge to direct the jury specifically that if the accused entertained an honest belief that the alleged victim was consenting, there must be a verdict of not guilty. The learned judge declined to give that direction. That has been made a ground of appeal. 19. Mr Heffernan based his argument that the learned judge was in error upon the authority of R v Brown (1975) 10 SASR 139. In that case at page 144, Bray CJ expressed the view that an honest mistake that the alleged victim was consenting might in certain rare circumstances be compatible with the existence of mens rea. In such a case although mens rea had been proved, the accused would escape conviction by reason of the common law of defence of mistake. 20. Whatever might have been the position at common law, it seems to me that that situation cannot arise since the definition of the crime of rape was inserted into the Criminal Law Consolidation Act by the 1976 amendment. The mental element of the crime of rape is now defined by s.48 and it leaves no room for a separate defence of honest belief in the consent of the alleged victim. Where the actus reus has been proved and the prosecution proves either of the mental states referred to in the section, the crime has been proved. The statute does not permit any further resort to the notion of mistake with respect to the mental element. That is not surprising because reckless indifference requires knowledge that the alleged victim may not be consenting or at least an absence of any belief that the alleged victim is consenting; R v Egan (1985) 119 LSJS 200; R v Athanasiadis (1990) 159 LSJS
240. The existence of reckless indifference, so understood, necessarily excludes the existence of a belief that the alleged victim is consenting; R v Sherrin (1979) 21 SASR 250 at p.253. 21. Where a mistake as to whether the alleged victim was consenting is a live issue in a trial and when the accused asserts a belief that the victim was consenting, there may be "every reason for a direction that the existence of that belief, if the jury considers it to be a reasonable possibility, is inconsistent with the knowledge or reckless indifference constituting the mental element of the crime." R v Sherrin supra at p.253. That is a matter for the discretion of the trial judge. 22. I consider that the learned trial judge, in the present case, sufficiently explained to the jury the mental element of the crime of rape and that his non-compliance with the request of counsel for a further direction cannot be relied upon as a ground of appeal. 23. In my opinion the appeal against conviction should be dismissed. 24. There is also an appeal against sentence. The sentence imposed was imprisonment for 10 years with a non-parole period of 8 years. 25. The crime was undoubtedly serious. It involved a significant degree of physical violence causing the victim a perforated eardrum and it involved a disregard of her right to refuse sexual intercourse. 26. Nevertheless there were extenuating circumstances. The appellant is 30 years of age and has had no prior convictions. His only court appearances were in the Children's Court. He has worked well and appears to have been a useful member of the community. The women with whom he has been associated in the past have spoken well of him and of his behaviour towards them. There is no doubt that he was caught up in a tense and emotionally charged relationship. It is no part of the function of this Court to attempt to attribute responsibility for that situation. There is every reason to accept that this outbreak of violence was the result, as the appellant put it, of the pressure which had built up in the relationship. The events which have occurred and the appellant's imprisonment will certainly bring the relationship to an end and there appears to be no reason to apprehend any re-offending. 27. In all the circumstances I think that the severe sentence imposed is manifestly excessive in the circumstances. I would allow the appeal against sentence and reduce the sentence to imprisonment for 6 years with a non-parole period of 4 years.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 OLSSON J This is an appeal against both conviction and sentence. 2. The appellant was found guilty by a jury of the offence of rape. The appeal against sentence relates to a single sentence imposed, pursuant to section 18a of the Criminal Law (Sentencing) Act, in respect both of that offence and an associated offence of assault occasioning actual bodily harm. The appellant entered a plea of guilty to the latter offence. Before addressing the various issues arising on the appeal it is convenient, first, to summarize the salient narrative facts revealed by the evidence. 3. The Crown case is that, early in 1990, a Ms Vicky Wills, entered into a sexual relationship with the appellant. He was a man aged about 27 and she was a single supporting mother aged about 20. There was some difference in the evidence of Ms Wills and the appellant as to the precise nature and extent of that relationship. I construe his evidence to suggest that it was of the nature of a full, live in, de facto relationship - at least for periods of time. On the other hand Ms Wills testified that the parties did not ever live together in the true sense of the word - although he was always at her house and, from time to time, stayed overnight. She conceded that, towards the end of the relationship, the appellant stayed at her house every night. 4. Ms Wills said that, initially, the parties enjoyed a good relationship. However, by about November 1990, tensions arose by virtue of him also seeing another woman - who I take to have been his ex wife. 5. On Ms Wills' evidence matters came to a head at that time when she discovered that both she and the appellant's ex wife were both pregnant to him. They continued to see one another frequently, but there were a lot of arguments. However, their sexual relationship did not cease, although intercourse did not occur frequently. Apparently this was the cause of some of the problems which arose. As I read the transcript of evidence Ms Wills merely wished the relationship to continue as friends (without any sexual connotation), whilst he desired the sexual relationship to continue. He would, she said, constantly nag her on that score. At times she would give in and permit him to have sex with her. 6. An arrangement was in existence whereby the appellant would look after her son David on Fridays, whilst Ms Wills worked. Trouble arose because of the late hour at which Daniel was returned. The appellant was, it was asserted, told that Ms Wills wished their whole relationship to be terminated, but he persisted. 7. Ms Wills told the jury that, on 8 January 1993, an argument arose when the appellant returned Daniel at 8.00 pm and it appeared that he had been taken to the home of the appellant's ex wife. Tempers became heated and the appellant allegedly threw an ashtray at Ms Wills. Daniel was sent next door. 8. Some discussion thereafter occurred in the kitchen. According to Ms Wills the appellant said that he loved her, but she said she wished him to go. On her narrative he eventually said that he would go and went towards the back of the house. However, a few minutes later he came back, grabbed her arm and pushed her into the bedroom. 9. It was testified by Ms Wills that she said to the appellant "I don't want to do it", to which he replied "You never want to do it". He then began undressing her. Her narrative was then to the following effect:-

    . she struggled and said "You promised me that you wouldn't
    do it again";
    . he said "I also promised that I would never hit you" and
    then struck her across the right side of her face with his
    open hand;
    . she was crying and let him take her top off because she
    did not wish to be hit again;
    . the appellant completely undressed her, spread her legs
    apart and got between them. He told her to touch his penis
    and play with it. She did touch it. At some point he
    placed his fingers between her legs and he also gave her a
    love bite on the neck. He had done so before, except that,
    on this
    occasion, it hurt;
    . whilst she was crying and struggling he had full penile
    intercourse, saying to her "Pretend it is someone else, you
    might enjoy it."
    . at one stage she kicked him away, because she thought he
    was attempting anal sex, and - as she put it - he then went
    crazy and struck her a series of blows with his closed fist
    on the left side of her head and body;
    . eventually the appellant went to the toilet and Ms Wills
    got dressed. She told him to go. He called a taxi and
    left, having said to her "If you call the police you will
    cop it".
    . not long afterwards she telephoned the police, complained
    of the assault on her, was taken to the Queen Elizabeth
    Hospital. Photographs were taken of bruises to her body.
    It was found that she had sustained a ruptured ear drum.
    She did not initially complain of rape. 10. Ms Wills conceded that, following this incident, she again saw the appellant on a number of occasions. She asserted that this occurred four or five times, on one of which she cuddled him, because he was threatening suicide. It was conceded by Ms Wills that, on one such occasion, she walked with the appellant on the beach. He said that they actually had consensual sex on that occasion, although she denied that suggestion. The first occasion of such a meeting was, in fact, only a few days after the alleged rape. On two or three occasions subsequent to the incident, Ms Wills voluntarily went to see the appellant. 11. What particularly emerged from the cross examination of Ms Wills was that, for some time prior to 8 January 1993, the relationship had, at times, been quite turbulent, with angry exchanges occurring between her and the appellant. They, nevertheless, apparently often shared the same bed during that time. She conceded that, often, intercourse occurred after lengthy debate and initial, expressed unwillingness on her part. On many of those occasions she eventually, albeit reluctantly, agreed. 12. Against that broad background the first complaint made by the appellant is that the learned trial judge erroneously declined to grant him a voir dire hearing designed to establish that certain evidence concerning statements made by the appellant to detectives on initial interview ought to have been excluded, together with certain related content of a subsequent video record of interview. 13. The evidence given by Detective Senior Constable Jenkins was to the effect that he and his partner Clifford went to Ms Wills' address at Salisbury Downs on 9 January 1993. Jenkins there spoke with the appellant in front of the house. The appellant had returned to pick up some of his personal belongings. He was already known to Jenkins as a Crown witness in an earlier murder trial. 14. According to Jenkins, the initial conversation between himself and the appellant was in these terms:-
    "A. I said 'Hello Andrew. Kevin Jenkins. Do you remember
    me? You were a witness for me in that murder trial.' He said
    'Yes. I recognise you now. How are you?' I said 'Yeah, good.
    They tell me you had some problem here last night?' He said
    'Yes.' I said 'Vicki has told the police you raped her last
    night and assaulted her. Do you know she had a perforated
    eardrum?' He said 'No, I didn't. Is she saying I raped her?' I
    said 'Rape is when you force someone to have sex with you
    against their will. Do you understand that?' He said 'Yes, I
    guess I did force her. She didn't want to do it.' I said
    'Detective Clifford will speak with you shortly. Take a seat in
    the back of the car while we get some things sorted out inside.
    Okay?' He said 'Yes.'" 15. I pause at this juncture to record that, in cross examination, Jenkins deposed that, at the time at which he and Clifford called to see the appellant, they had neither seen nor read any statement obtained from Ms Wills. They had, he said, merely had a brief conversation with uniformed officers at Ms Wills' premises and had been made aware of the fact that she had alleged that the appellant had raped her. Jenkins, by virtue of his prior association with the appellant, knew that he had been in a relationship with Ms Wills. 16. Jenkins asserted that his opening words to the appellant were no more than an introductory indication as to why the police were there; and were not intended to constitute any form of definitive interrogation of the appellant. Indeed they did not, at that point, know what had occurred in detail. He said that this was the more so as it had been agreed, on the basis of relative workload, that Clifford was to be the interviewing officer, whilst he would merely be the corroborating officer. 17. At the time of the conversation above recited Clifford was inside the house speaking with Ms Wills. When Clifford came out to the car (and after speaking to Jenkins) he arrested the appellant, who was then conveyed to the Elizabeth Police Station for a video record of interview. A formal caution was administered to the appellant when he was arrested. 18. Jenkins deposed that, on arrival, the video room was in use and it was necessary to wait for some time. In that period Jenkins made notes of his initial conversation with the appellant and then showed them to the appellant and asked him to sign them. 19. This witness conceded that, when he did so, the appellant raised a question as to their accuracy. His evidence on that score was as follows:-
    "Q. Didn't he raise a problem with those notes when you
    gave them to him to read.
    A. He raised a query with half a sentence of those notes,
    yes.
    Q. What sentence was that.
    A. Where he says 'Yes, I guess I did force her. She didn't
    want to do it'. He had a query with the 'Yes, I guess I did
    force her'.
    Q. You say he didn't query also the remainder of that
    sentence which is 'She didn't want to do it.'
    A. No, he didn't.
    Q. Did you ask him then to clarify it so that you could
    correct your notes.
    A. Knowing that Detective Clifford would be conducting the
    interview on the video and that that would be recorded, I
    basically said to Andrew that he was more than able, and it
    was appropriate, that if he had any queries or wanted
    anything clarified, that he do that on the video and that we
    would clarify it then for him.
    Q. You knew he didn't agree entirely with what you had
    written.
    A. I don't know that it's a matter that he disagreed. I
    don't think he was happy - once he saw the words in black
    and white I don't think he was happy with the way he had
    worded it.
    Q. Did he say to you at that time he recollected saying 'I
    guess you can say that I didn't force her' and not 'Yes, I
    guess I did force her.'
    A. Yes, I think he may have said something like that but
    again -
    Q. Could you have not written that amendment to the notes
    then at the time.
    HIS HONOUR: He has given an explanation. You could query
    his explanation.
    XXN Q. Do you think it was appropriate at that time to ask
    him to sign it if he had a disagreement about it.
    A. No, he was asked to sign the page if he agreed with it.
    He agreed with the page apart from that half a sentence.
    Q. I put it to you that you requested him to sign it and
    said that you would try and clear it up later.
    A. No, he was asked if he wished to sign it. He was told
    he didn't have to, but I agree that I said to him yes, if
    there was any problems with that half a sentence that we
    would clear it up in front of the video so that it could be
    recorded." 20. A video interview, conducted by Clifford, was commenced at 12.16 pm. After certain preliminary matters were attended to, including the administering of a caution to the appellant, Clifford requested him to look at the notes which Jenkins had made of the earlier conversations. The following dialogue then occurred:-
    "He sd, From the, right at the top. I sd, From the top,
    yep. He sd, 11.00 hundred hours Saturday 9th of January 1992,
    which is wrong it's 93. Going outside 20 Lynette Lane,
    Salisbury Downs. I said, Hello Andrew, Kevin Jenkins do you
    remember me. You were a witness for me in that murder trial.
    Yes I recognise you now, how are you. Yeah good. They tell me
    you had some problems here last night. Yes. Vicki has told the
    police that you raped her last night and assaulted her. Did you
    know that she had a perforated ear drum. No I didn't. Is she
    saying I raped her. Rape is when you force someone to have sex
    with you against their will. Do you understand that. Yes. Now
    before I read this out I, like I said I don't really want to
    agree with that bit. I sd, Alright. If you could just read it
    out. He sd, Alright. I sd, Then I'll, then I'll ask you what,
    what. He sd, Yes I guess I did force her, she didn't want to do
    it. Detective Clifford will speak with you shortly, take a seat
    in the back of the car. I will get something sorted out inside,
    OK Yes. I sd, Is that all, that's all the notes that Detective
    Jenkins has written. He sd, That's all the notes. I sd, And
    those notes have been signed by Detective Jenkins and yourself.
    Is that right. He sd, Yes. I sd, Now Andrew you just mentioned
    something about there's a line here or something that you might
    be a little bit. He sd, It's. I sd, Doubt, doubtful. He sd, I
    guess I did force her, when I think I said which I guess you
    could say I, I did force her. I don't think I did force her
    though. I sd, I'm not quite with you. So now your saying that,
    that's not what you said to Detective Jenkins or your saying
    that that's what you'd like to say now. He sd, Well I'm not
    quite sure if that is what I said, like I said before. I sd,
    But what we're talking about now is this is the conversation
    that Detective Jenkins and yourself had. He sd, Yes. I sd, At
    11.00 o'clock this morning at the house or the front yard. He
    sd, Yes. I sd, So is that the conversation you had or are you
    saying now that you'd like to expand on it. He sd, I just want
    to change what it is said there. DET. JENKINS I sd, Andrew
    your more than more than entitled to change whatever you want
    and to tell Detective 10 Clifford whatever you want now, I think
    what he's, what he's saying to you at the moment though is are
    you happy or are you not happy with the fact that even though
    you may not of, you may not be happy with the way you said it
    now, that that is what you said. I guess what we're saying is
    have I recorded the conversation you and I had accurately. You
    may not have wished to of perhaps worded it like that but on my
    recollection is that's what you said. He sd, Well I can't
    recall if I worded it like that, that's why I'm disputing that
    bit. I sd, Right, OK well perhaps I've recorded it as you said
    it, right. I think now what what your realising is that perhaps
    now that your seeing it in black and white that it's not exactly
    how you meant to say it. Detective Clifford will give you the
    opportunity shortly to perhaps express in more detail what you
    meant by that comment. Alright. He sd, Yeah. I sd, So the
    point, for the point of this argument is your not saying at all
    that I've recorded things you haven't said, are you. Your just
    saying that you don't remember saying that in that precise
context. He sd, That's right. I sd, OK." 21. Unfortunately, as it seems to me, this general topic was not again adverted to and thus the interview did not provide the appellant with an opportunity of giving a full, uninhibited, explanation of what he had been intending to convey. 22. In the course of his evidence the appellant told the jury that what he had been attempting to convey to Jenkins was that intercourse had previously occurred against the background of an initial refusal and a later reluctant consent. 23. It was contended by Mr Heffernan, of counsel for the appellant, that what occurred was in breach of the obligations of the police as explained in R v Dolan (1992) 58 SASR 501, in that it ought to be inferred that, by the time at which Jenkins first spoke to the appellant, the police had arrived at the point at which they had reasonable grounds for suspecting him of rape and that the appellant ought to have been cautioned at the outset. It was in relation to that aspect that a voir dire inquiry was requested. 24. Mr Heffernan made his application to the learned trial judge on the same premise that he advanced his submissions on the present appeal - that, when Jenkins first spoke with the appellant, the detectives were already in possession of a statement made by Ms Wills, and that, in any event, it was an unguarded statement which ought not to have been admitted. 25. The learned trial judge declined the application because he considered that, given the dialogue recorded in the formal record of interview, it was readily apparent that the appellant contended that he had not literally meant what he originally said; and it was for the jury to form its own assessment of the situation. 26. With all due respect to the learned trial judge I would have had some difficulty with his reasoning if the factual base of Mr Heffernan's application had proved to have been correct. It seems to me that the whole scenario had a potential to act seriously to the appellant's prejudice if this had been a situation in which the principle discussed in R v Dolan had been breached. 27. However, it seems to me that here lies the problem from the appellant's point of view. The evidence quite plainly revealed that, when Jenkins spoke with the appellant, he had no detailed information other than a bare second hand allegation of rape, against the background of what was obviously a "domestic" situation in which the appellant had returned to collect his gear and Ms Wills appears to have called for police assistance. In my opinion the basis for the desired voir dire plainly did not exist. The detectives had no firm view one way or another. At best the situation was in the preliminary investigational stage and had not reached a point at which the arrest of the appellant was plainly imminent. That only followed when Clifford had spoken with Ms Wills and the appellant had volunteered his statement to Jenkins. 28. It follows that, manifestly, no caution was called for until after that stage had been reached and this ground of appeal has not been made out. The same conclusion necessarily flows in relation to the grounds of appeal related to the failure to exclude the statements made by the appellant. 29. Equally there is, as I see it, no substance in the complaint concerning the manner in which Jenkins and Clifford handled the issue of the signing of the notes of the original conversation. It was probably unfortunate and undesirable that they persisted in asking the appellant to sign the notes, instead of merely recording his protest. However, the fact is that he did make the statements attributed to him and it was made clear to the jury that he had, at all subsequent stages, insisted that he had not used the relevant words in their literal sense. I cannot see how any unfairness arose in the circumstances. 30. I finally turn to the ground based on the contention that the learned trial judge should have directed the jury that it ought not to convict if they came to the conclusion that it was reasonably possible that the appellant may have entertained an honest, but mistaken, belief that Ms Wills was consenting at the time at which intercourse occurred. 31. This was based on the line of reasoning referred to in The Queen v Brown
(1975) 10 SASR 139 at 148-9. (See also the 'reluctant acquiescence' concept adverted to in Holman v The Queen (1970) WAR 2 at 6.) 32. In considering that submission it is at once to be noted that The Queen v Brown was decided prior to the enactment of section 48 of the Criminal LawConsolidation Act, in the form in which it is now expressed. In effect that case established the proposition that, in rare cases, it could be possible to have a situation in which an accused honestly believed that a woman was consenting to intercourse but, none the less, intended to have intercourse with her, being recklessly indifferent to whether she was or not. 33. The common law situation has since been overtaken by the current statutory definition of the crime of rape which now stipulates that:-
    "48 A person who has sexual intercourse with another
    person without the consent of that person -
    (a) knowing that that other person does not consent to
    sexual intercourse with him; or
    (b) being recklessly indifferent as to whether that other
    person consents to sexual intercourse with him, shall
    (whether or not physical resistance is offered by that other
    person) be guilty of the felony of rape and liable to be
    imprisoned for life." 34. In my opinion the express wording of that section does not leave any scope for the operation of the dictum of Bray CJ in The Queen v Brown. The alternatives postulated by paragraphs (a) and (b) of that section would seem to me, expressly, to exclude the possible scenario referred to by Bray CJ. The statutory concept of reckless indifference necessarily connotes the absence of knowledge or belief that a victim is consenting. 35. This ground of appeal must therefore fail. I would therefore dismiss the appeal against conviction. The appeal against sentence is based upon the ground that, having regard to the circumstances revealed by the evidence, the sentence imposed was manifestly excessive. 36. Having regard to the present very wide span of the definition of sexual intercourse and also the extremely variable factual circumstances in which the crime of rape occurs, crimes of this nature necessarily vary considerably in their inherent seriousness for sentencing purposes. The scale of seriousness necessarily extends from circumstances which, in former times, would have been classified as an indecent assault not accompanied by significant physical and (at least long term) psychological trauma to the victim, on the one hand, to extremely brutal and depraved conduct exhibited to a victim who is a stranger to the rapist and experiences substantial physical injury and/or long term psychological harm - often involving situations in which the victim is placed in great fear (eg rape accompanied by brutal and/or depraved physical trauma in the context of abduction, break in to a dwelling at night or pursuit at night in a lonely area, and the like). 37. Whilst all forms of rape are serious and must be dealt with accordingly, practical reality demands some broad, classification of the individual case and its assignment to a notional position along the spectrum of degrees of relative seriousness. 38. Factors of relevance to the present case are:-
    . the offence occurred between persons well known to one
     another in the context of what had been an ongoing
    turbulent domestic relationship;
    . whilst the physical ill treatment and assault on the
    victim was appalling and cowardly it fortunately does not
    appear to have given rise to permanent ill effects or
    disability;
    . although the distress occasioned to the victim is not to
    be underestimated or discounted the evidence does not
    indicate the generation of the long term psychological

    symptoms so often seen in many rape cases. 39. Indeed it is clear that, although there was some contention as to certain details, the victim has, since the offence, voluntarily socialised, on a one to one basis, with the appellant - in circumstances in which she has not demonstrated significant fear of him or of being in his presence. She has actually been in his company walking on the beach, or in a domestic setting, for substantial periods of time. The learned sentencing judge seems to have placed the single course of events giving rise to these two offences at a position very much towards the most serious categories of this generic type of crime. No doubt he was, in large measure, motivated to do so by the appellant's cowardly, unprovoked assault on Ms Wills. 40. Whilst a substantial custodial sentence was undoubtedly called for, it is difficult to see how, in objective terms, the classification of this situation can fairly be placed in the position which it currently stands along the spectrum to which I have referred. Moreover it does not seem to recognise those mitigating factors, personal to the appellant, which were identified to the learned sentencing judge, including his expressed contrition, his relatively young age, the developing domestic tension in which he found himself, the fact that the appellant had no adult antecedent record and the fact that it is unlikely that he will re-offend. I consider that the sentence imposed must be classed as manifestly excessive. 41. I would allow the appeal, set aside the sentence imposed and, in lieu thereof, substitute a head sentence of imprisonment for six years, with a non parole period of four years, both to run from 28 July 1993.