R v Bland No. Sccrm-01-21

R v BLAND
[2001] SASC 57

Court of Criminal Appeal: Doyle CJ, Duggan and Williams JJ

1................ DOYLE CJ...... I would dismiss the appeal against conviction and would dismiss the appeal against sentence. I agree with the reasons given by Duggan J. There is nothing that I wish to add to those reasons.

2................ DUGGAN J..... The appellant was convicted of rape after a trial in the District Court. The information alleged that on 19 June 1999 he had vaginal sexual intercourse with the complainant against her consent. He has appealed against conviction and sentence. The grounds of appeal against conviction include complaints that the trial judge erred in ruling that there was a case to answer at the conclusion of the prosecution case; that he erred in failing to discharge the jury by reason of an allegedly unfair final address by the Crown prosecutor; and that the verdict of the jury is unsafe and unsatisfactory. Other grounds complain of particular passages in the summing-up.

The appellant was 28 years of age at the time of the alleged offence and the complainant was 29. There was evidence that the complainant is intellectually disabled. She also has marked physical disabilities. She was born with cataracts on both eyes and she is now blind in one eye. She was also born with a hole in her heart. She underwent surgery when she was six years of age and suffered brain damage caused by air embolism which arose in the course of the operation. She has some difficulty walking and usually does so with the aid of a walking stick. The operation also resulted in the intellectual disability from which the complainant suffers.
The complainant attended the Regency Park School for the Young Disabled. She was working in a sheltered workshop at the time of this incident and was living with another young woman in a private home where both were supported by care workers.
The appellant and his wife lived next door to the home in which the complainant lived. The complainant said in evidence that on two or three occasions prior to this incident the appellant had fixed things in her home. She said that if anything needed fixing it would be put in a diary. She said the appellant had put in a light globe and fixed a tap on the previous occasions. She said the care workers had asked him to do these jobs.
Then, on the day of the alleged offence, the complainant said she went over to the appellant’s house to ask him to fix a kitchen cupboard. She said one of the care workers told her that the diary contained an entry to the effect that a cupboard needed fixing and the care worker asked the complainant to get the appellant. There were no care workers in the complainant’s house at the time she went to speak to the appellant.
The complainant said in evidence that the appellant’s wife answered the door when she went over. The appellant’s wife then called out to the appellant to tell him that the complainant (mentioning her Christian name) was at the door. The appellant came to the door and the complainant asked him to fix the broken cupboard. She said he agreed and went over to the house and fixed it. After he had done so she asked him to come into her bedroom and fix some shelving which was crooked. The complainant said that after the appellant looked at the shelves he asked her if she had ever had sex before. She said “No”. The complainant was sitting on her bed and the appellant took off his shorts and held the complainant’s knees. She said he pulled her slacks and pants down and put his penis into her vagina. The appellant said nothing to the complainant before placing his penis in her vagina except for the enquiry as to whether she had previously had sex. She said that after he put his penis in her vagina he asked if it felt good. She said “Yes”. According to the complainant, she gave this reply because she was scared. She said that the appellant’s penis hurt her and she later told him so. He said it would only hurt for a little while.
According to the complainant, she told the appellant he had better stop because his wife might come over. She said she mentioned this because she was scared of him. The appellant did stop and then remarked that he had left a mess on the floor. The complainant said the appellant made her promise she would not tell anybody what happened, otherwise his wife would find out.
The appellant then left. The complainant said she was very upset and confused. She said her mother arrived on the afternoon of the day of the incident. They went to a shop to eat and it was then that she told her mother what she said had happened. The police were called. The complainant was examined by a medical practitioner who observed a bruise consisting of red spots at the lower end of the complainant’s hymen. The complainant complained of pain when the examining doctor inserted some swabs in her vagina and at this stage the vaginal examination was discontinued. In cross-examination the doctor said that the bruising was non-specific in the sense that there could be a number of reasons for its presence.
When questioned by police the appellant declined to answer questions about the matter and he did not give evidence at the trial. However, his counsel put to the complainant during cross-examination that the appellant did not have sex with her at all.
There was evidence that semen was found in the complainant’s bedroom at a location where the complainant said she had seen the appellant wiping the floor. Furthermore, the prosecution called DNA evidence which established a match between the semen and a sample of the appellant’s blood. The evidence was challenged at the trial, but it was open to the jury to act upon it.
At the conclusion of the prosecution case the appellant’s counsel submitted that the learned trial judge should find that there was no case to answer. The submission was rejected. It was based on the assertion that, even if the appellant did have intercourse with the complainant, the prosecution had not established the basis for a finding that he had the necessary state of mind for the offence of rape. Although the ground of appeal alleging that there was no case to answer is to be determined by reference to considerations which differ from those to be applied when considering the ground asserting that the verdict is unsafe and unsatisfactory, both grounds as they were argued in the present case focus on the alleged lack of proof of the requisite mental element for rape.
The crime of rape is defined in s 48 of the Criminal Law Consolidation Act 1935 in the following terms:
“A person who has sexual intercourse with another person without the consent of the other 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 rape.”
It was not suggested on appeal that the jury could not have found beyond reasonable doubt that the appellant had sexual intercourse with the complainant and that she did not consent. The focus of the argument before this court was on the appellant’s state of mind and whether the evidence was sufficient to support a finding that the appellant either knew that the complainant was not consenting or that he was at least recklessly indifferent as to whether the complainant consented to sexual intercourse. It is sufficient in order to establish reckless indifference in a rape case to prove that the accused realised that the complainant may not be consenting, but nevertheless proceeded with intercourse (R v Wozniak (1977) 16 SASR 67 at 74; R v Ball, Bunce and Calliss (1991) 56 SASR 126 at 127).
Mr Barrett QC, for the appellant, submitted that there was no evidence from which an inference could be drawn by a reasonable mind beyond reasonable doubt that the appellant knew that the complainant was not consenting or that he was at least recklessly indifferent as to whether she was consenting. He said the evidence tended to point in the opposite direction. He drew attention to the lack of protest by the complainant, the fact that she said “Yes” when the appellant asked her if it felt good and the evidence that the appellant desisted when asked to do so. Mr Barrett added that there was no evidence of any positive acts which would have indicated lack of consent to the appellant.
It is true that in many cases of alleged sexual assault the matters referred to by Mr Barrett might be of some significance. However, the circumstances of the present case render the inferences to be drawn from these matters far less obvious. It is of particular importance in this case to examine the entire background to the incident and the facts and circumstances which would have been apparent to the appellant. The conduct and attitude of an intellectually disabled person in circumstances such as the present may be far less likely to give rise to the impression of consent when compared with a case involving a complainant without a disability of this nature.
An examination of the appellant’s state of mind in this case involves an assessment of how the complainant presented to him and what, if anything, he knew of her intellectual disability. Just as it is relevant to take into account a complainant’s actions as reflecting her state of mind, it is also relevant to have regard to an accused person’s knowledge or belief as to the existence and extent of a complainant’s intellectual ability. Silence and apparent acquiescence from a child known to the accused to be terrified are unlikely to engender a belief in consent to sexual activity. So also, the accused’s knowledge of any intellectual disability which the complainant might have is relevant to the assessment of his belief.
Reference has been made to the fact that, on previous occasions, care workers had arranged for the appellant to come over to the house where the complainant lived in order to carry out minor repair work. However, although the appellant had been to the house on prior occasions, there is no suggestion that he had formed any relationship with the complainant or that there had been any previous occasion of intimacy.
It appears that the appellant was in the house for only a short time before he asked the complainant if she had previously had sex. If the complainant’s evidence is accepted, she responded to the appellant by telling him that she had not had sex before. Without any warning or other prelude and without enquiring whether she wanted to have sex with him, the appellant proceeded to have sexual intercourse with her.
These circumstances, which might well be regarded at face value as having an air of unreality about them, are understandable if the complainant’s intellectual disability is taken into account.
Even if the appellant had no inkling of the complainant’s disability prior to this incident, it is important to have regard to how she presented on the occasion of the alleged rape. In this respect the jury were entitled to make their own observations of her in the witness box. It is clear that the complainant and the appellant spoke together for a time on this occasion, albeit not at length. Nevertheless, having observed her, the jury were equipped to make an assessment of the impact which her appearance and manner would have made on the appellant at the time of the incident.
The prosecutor advised the trial judge prior to the commencement of the trial that he wished to lead evidence before the jury from a Ms Fahey, a qualified social worker, who took part in an assessment of the complainant in 1996. Ms Fahey stated in her declaration that she had developed a close professional relationship with the complainant and was able to assess how her disability impacted on her lifestyle. Ms Fahey expressed the view that the complainant does not initiate conversation and waits for others to interact with her. She said her response to conversation had an “extended time delay response” which depended on the complexity of the conversation. She said the conversation has to be simple, clear and slow for the complainant to understand and she needs time to process what has been said.
In the course of the argument as to the admissibility of Ms Fahey’s evidence the prosecution tendered a videotape of the complainant’s interview with the police concerning the incident. After viewing the tape the learned trial judge ruled that he would not admit Ms Fahey’s evidence. He said:
“Having looked at various passages on that video, and I fast-forwarded through a fair bit of it, it seemed to me that a layperson, listening to her, would realise that she had an intellectual disability, and that she was slow in answering questions. I didn’t really think that there was a need to have specialist evidence to explain that.”
Counsel for the appellant and the respondent consented to the members of this court viewing the videotape. After viewing the tape I have reached the conclusion that the complainant’s intellectual disability would have been clearly apparent to the jury. The recording provides an indication of the opportunity which was given to the jury to assess the complainant’s appearance and demeanour and to use that knowledge in determining the reaction which other people, particularly the appellant, would experience when conversing with her and observing her.
I return then to the circumstances of the alleged offence. It is my view that the jury were in a position to be able to conclude that the appellant would have realised that the complainant suffered from an intellectual disability as well as from her physical disabilities. He was asked to do some minor repair work in the complainant’s house and, after a very short time, he asked her if she had ever engaged in sex. After being told that she had not, he immediately proceeded to have intercourse with her without any further conversation. There was no hint of a prior relationship between them. It is not to the point that she did not struggle. It must have been evident to the appellant that her intellectual disability could have explained the absence of any such reaction . Nor is it relevant to the issue of mens rea that, after he had penetrated her, he asked if it felt good and she replied “Yes”. The reference to the appellant’s wife is equivocal and at least equally consistent with the complainant’s evidence that she was in fear of the appellant.
When it was submitted to the learned trial judge that there was no case to answer by reason of the lack of evidence as to mens rea, it became necessary for him to consider whether the evidence was capable of supporting a conviction. In other words, he was required to decide whether there was evidence which, if accepted, was “capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt” and thus capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable. (Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 at 5.)
In the present case it is not disputed that the evidence was capable of establishing sexual intercourse without consent and, for the reasons which I have given, I think there was sufficient evidence also on the issue of mens rea to establish that element of the offence. At the very least, I think there was evidence which was capable of convincing the jury beyond reasonable doubt that the appellant believed the complainant may not be consenting, but that he decided to have sexual intercourse with her nevertheless. In my view the learned trial judge was correct in deciding that there was a case to answer.
Next, criticism is made of two passages in the trial judge’s summing-up to the jury. The trial was short and the jury retired to consider its verdict at 12.30 pm on the second day of the trial. The summing-up was brief. When instructing the jury on the law the learned trial judge explained the elements of the offence of rape and reference was made to recklessness as part of the direction on mens rea. His Honour instructed the jury that this latter aspect required their particular attention.
The directions on the appellant’s state of mind are set out below. The first passage complained of in the grounds of appeal is highlighted. The trial judge said:
“If the prosecution proves to you beyond reasonable doubt that there was intercourse and that [the complainant] did not consent, then it goes on to what I think is likely to be the most difficult question for you. The prosecution has to prove that Mr Bland had one or other of two states of mind at the moment when he penetrated her. It must prove either that Mr Bland was actually aware that [the complainant] was not consenting, or it must prove that he was actually aware that she might not be consenting but went ahead anyway.
[The complainant] alleges that the sequence of events was that as she sat on her bed, Mr Bland, a man with whom she had no relationship, asked, out of the blue, whether she had ever had sex. She says she replied ‘No’, whereupon he took off his shorts, threw them into the corner of the room and knelt in front of her. She says he pulled down her slacks and underpants. She said nothing. He pushed her back, he held her legs down. He then had intercourse.
Remember that you are considering his state of mind at the moment of penetration. [The complainant] does not suggest that more happened or was said before that moment.
After that moment, there were further conversations but not explicit protest. Those later conversations may help you to understand [the complainant’s] state of mind, particularly whether, in fact, she consented. Her remarks, you may think, neither amount to a refusal of consent or to a granting of consent. She does not claim that she protested or resisted in any way.
If it is the case that she did not protest or resist, that is not the same as consent. It is a matter that you take into account when you consider whether there was, in fact, consent, but of itself, it does not prove it.
She has claimed to you that she was scared, she didn’t really know what was going on and so she didn’t protest or resist. You know that she is not of strong intellectual capacity and you know that she has physical weaknesses. Is inactivity and lack of protest, in her case, and in the circumstances that she alleges, an indication to you of possible consent or not? It is certainly not the case that as a matter of law, inaction or lack of protest is to be equated to consent. It is a question of fact for you to look at, in all the circumstances, to see whether you are satisfied that it is proved that there was no consent.
Similarly, what she says he said does not really go far to establish what he thought about whether she had consented to what, by then, he had already done. His questions about whether she liked it and so on are to be considered by you, but they don’t really go very far one way or the other in establishing what he thought on the subject of whether or not she was consenting.
The fact, taken in isolation, of having intercourse cannot prove what Mr Bland thought at the time.”
The direction on mens rea in the first paragraph of the directions which I have set out is a correct statement of the law. After giving this direction, his Honour summarised the facts directly related to the alleged offence and reminded the jurors of the relevant time for considering the appellant’s state of mind. His Honour then made a specific comment about things said after penetration took place and related them to the issue of consent as opposed to the issue of the appellant’s state of mind. There was further discussion in relation to consent before the trial judge returned to the question of the appellant’s state of mind.
In my view, these directions could have been structured more appropriately. It was important for the jury to appreciate the clear distinction between consent and the appellant’s state of mind in relation to consent. I think it would have been better if the judge had dealt with all aspects relating to mens rea together instead of allowing them to be interspersed with references to actual consent. However, it must be said that the distinction between actual consent and the appellant’s understanding as to consent was set out with clarity earlier in the summing-up and I think the jury would have fully understood these elements of the offence.

Factors relevant to the appellant’s state of mind were emphasised immediately after the above directions were given. His Honour said:
“If you are to find either of those states of mind proved, it seems to me that it must be by a consideration of all the circumstances. If you accept the prosecution, you have a woman with no sexual experience approached out of the blue by a man with whom she had no relationship for sex. She had done nothing to encourage him or to lead him on. She was a woman with an intellectual disability. She did not resist as he removed his pants and her pants. He had only been called to the house to fix a cupboard, not for any social purpose that might have been misunderstood.
You may think that, having regard to the lack of protest or resistance, the prosecution has not proved that Mr Bland was actually aware that [the complainant] did not consent. If so, is it reasonably possible that he thought he might have consent? The prosecution must prove that he was actually aware that she might not be consenting, but went ahead anyway.
Are the circumstances such that no-one could possibly have thought that? Can you, by that process, be satisfied that Mr Bland must have known? Note that the question is not what you would have realised, or what a reasonable man would have realised, or what Mr Bland should have realised. It is ‘What are you satisfied that Mr Bland actually, in fact, realised’? Are you satisfied that, in fact, he realised that he might not have consent, but he went ahead anyway.”
Mr Barrett submitted that the passage in the judge’s remarks which is in italics amounted to withdrawing relevant matters from the jury’s consideration. However, it is my view that his Honour was doing no more than pointing out that conversation subsequent to penetration was not particularly relevant to the issue of the appellant’s state of mind because, as he told the jury previously, the relevant time for the consideration of that matter was the time at which the appellant penetrated the complainant. The trial judge had earlier explained to the jury that these later conversations were relevant to the issue of actual consent.
Next, criticism was made of the following directions which appear later in the summing-up:
“How you view the evidence is entirely for you. If it is not proved that there was intercourse, you will acquit. If there was intercourse, but it is not proved that there was no consent, you will acquit. But, if those two matters are proved, then look very carefully at whether, despite the circumstances, you think it reasonably possible that, for whatever perhaps stupid or muddle-headed reason, Mr Bland believed that he had consent. If so, you would acquit.
Has the Crown proved that he was aware that he might not have consent but went ahead anyway? If so, and if the other elements are proved, you will convict.”
The appellant complains about the comment “for whatever perhaps stupid or muddle-headed reason, Mr Bland believed that he had consent” and argues that it deprecates the possibility that the appellant might have believed the complainant was consenting. In my view, this was not intended by the trial judge, nor would the jury have understood the comment in this way. The direction does no more than imply that whatever the reason might have been, even if the appellant had a stupid or muddled-headed reason for believing in consent, he was nevertheless entitled to an acquittal. No complaint was made by counsel at the time concerning the impression which the words used by the judge might have had on the jurors.
The next ground of appeal contends that the learned trial judge erred in failing to discharge the jury at the conclusion of the address of counsel who prosecuted at the trial and that, as a consequence, the trial was unfair. At the conclusion of the prosecutor’s address counsel for the appellant at the trial applied for the discharge of the jury because of what he described as inflammatory and highly prejudicial comments by the prosecutor. At the hearing of the appeal Mr Barrett directed the court’s attention to particular passages in the prosector’s address which contained comments relating to the disabilities of the complainant and her sexual inexperience.
After reading the transcript of the prosecutor’s address and paying particular attention to the passages complained of, I cannot agree that the address was unduly emotive or that it sought to make use of the complainant’s disabilities for other than a legitimate and relevant forensic purpose. The prosecutor submitted to the jury that the complainant’s intellectual disability in particular was relevant to issues such as why she did not complain to her house mate instead of her mother and to the important question of the appellant’s state of mind. It was also relevant for the prosecutor to suggest, as he did, that it was part of the prosecution case that the appellant took advantage of the complainant’s disabilities. The trial judge warned the jury not to be swayed by sympathy for the complainant by reason of her disabilities. The trial was not rendered unfair by the prosecutor’s comments and this ground must fail.
In my view the evidence provided a sufficient basis for a finding of guilt on the offence charged and there is no ground for holding that the verdict is unsafe or unsatisfactory.
I would dismiss the appeal against conviction.
Finally, there is the appeal against sentence. The appellant was sentenced to imprisonment for three years and six months. A non-parole period of 18 months was imposed. The learned judge refused to suspend the sentence. The appeal against sentence is confined to the aspect of suspension.
The appellant was sentenced on the basis that he had intercourse with the complainant without her consent, believing that she might not be consenting but proceeding to have intercourse notwithstanding. The appellant has no previous convictions and evidence was called of a number of positive aspects of good character including an excellent employment history. The appellant is married with one child and it is clear that he has provided well for his family.
The learned judge took all relevant matters into account and he expressed concern at the devastating effect that imprisonment would have on the appellant and his family. He gave consideration to the question of suspension, but decided that the seriousness of the offence militated against that option.
The head sentence and the non-parole period were quite modest in view of the seriousness of the offence. However, in my view, the further step of suspending the sentence would have been inappropriate. Apart from the seriousness of the allegations, the appellant cannot lay claim to leniency on the ground of contrition. There was not even a concession that intercourse took place, despite the overwhelming evidence to the contrary.
I would dismiss the appeal against sentence.

45.............. WILLIAMS J. I agree with Duggan J.

[2001] SASC 57

14 March 2001