R v Blayney

Case [2003] SASC 405

R v BLAYNEY & BLAYNEY

[2003] SASC 405

Court of Criminal Appeal:  Debelle, Gray and Sulan JJ

  1. DEBELLE J           The appellants, who are brothers, were each convicted of the crime of rape of a young woman aged 18 years whom I will call “the complainant”.  Each appeals against his conviction.

  2. The case against the appellants was that each had participated in the act of sexual intercourse with the complainant.  The main issues at the trial were whether the complainant had consented to each act of sexual intercourse and as to the state of mind of each appellant, that is to say, whether each knew that the complainant did not consent or was recklessly indifferent to whether he consented.

  3. The events occurred on the night of 23 and 24 May 1998 at a house near Victor Harbor.  The rapes were alleged to have occurred in the early hours of 24 May.

  4. The complainant had consumed a substantial amount of liquor that night.  On the evening of 23 May, the complainant went to premises occupied by a friend, Ms Kate Gerard, for a barbecue.  The complainant there consumed three glasses of brandy and Coca-Cola.  The complainant decided to spend the night with Kate Gerard.  After a number of telephone calls, the complainant and Kate Gerard decided to attend a party at a home occupied by Mr Brett Threadgold and his friend, Ms Melissa Peters.  The party was to celebrate the birth that day of a child whose father was the appellant, Erik Blayney.  The party began at about midnight.  There were six people at the party, the complainant, the appellants Erik Blayney and Daniel Blayney, Kate Gerard, Brett Threadgold and Melissa Peters.  Erik Blayney was well known to the complainant.  They were friends.

  5. On arrival at the party at about midnight, everyone except Brett Threadgold began drinking spirits in the lounge room of the house.  Some of the spirits were mixed.  All but Brett Threadgold also began playing a card game which involved skolling shots of liquor.  It was, in truth, a drinking game.  Because of her participation in the game, the complainant became severely intoxicated.  While in the lounge room, she suddenly vomited over herself.  She was so ill that she had to go to the bathroom where she continued to vomit.  Her friend, Kate Gerard, assisted her to change clothes.  Thus far, there is no dispute as to the facts.

  6. It was the prosecution case that at some time Erik Blayney came into the bathroom and assisted the complainant to leave it and go outside.  He assisted her to his car where the complainant got into the rear seat and went to sleep.  That assistance was necessary because, it was alleged, the complainant was so grossly intoxicated.

  7. According to the complainant, the next thing she remembered was that someone was undoing the buttons of her shirt but, because she was so ill, she could not move or say anything.  She also recalled hearing a voice say, “Back off, you have…

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AGLC
R v Blayney [2003] SASC 405
Case
[2003] SASC 405
Decision Date

CaseChat Overview and Summary

In the case of R v Blayney, the appellants were convicted of various charges related to sexual offences against a complainant who was heavily intoxicated. The High Court of Australia was called upon to review the convictions and determine whether there were any errors in the trial that warranted interference. The central legal issues revolved around the admissibility of certain evidence and the adequacy of the trial judge’s directions to the jury regarding consent. Specifically, the court needed to determine whether the complainant’s testimony about her lack of consent was properly admitted, given her incapacitation due to intoxication, and whether the jury was correctly guided on the concept of consent in the context of sexual offences.

The High Court held that the trial judge’s direction to the jury on consent was misleading because it did not adequately address the issue of whether the complainant’s conduct indicated consent. The court noted that while consent is a state of mind, the jury must examine all relevant facts, including the complainant’s words and conduct, to determine her state of mind at the time of the alleged offence. The court found that the trial judge’s direction, which seemed to isolate consent solely as a matter of the complainant’s state of mind, was unhelpful and potentially misleading in the context of the evidence presented. Moreover, the court determined that the complainant’s evidence about her lack of consent was inadmissible because she was in no position to recall or state whether she consented due to her level of intoxication.

Ultimately, the High Court concluded that although there were errors in the trial, they did not provide a basis for the court to interfere with the convictions. The court found that the appellants' case was accurately and fairly presented to the jury, and the evidence and directions provided were sufficient to allow the jury to properly consider the issue of consent. Consequently, the appeals were dismissed, and the convictions were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was open to the jury on the evidence in this case to consider whether the complainant’s conduct constituted consent. It was, therefore, necessary for the trial judge to direct the jury to the extent to which words or conduct of the complainant might indicate consent. In a case such as this, an analogy is to be found in the context of the proof of intention. Intention too is a state of mind and, on occasions, it might be possible to determine what in fact a person’s intention was at any time by an examination of what has been proved as to the words or conduct or both of that person. In other words, the jury must determine as a question of fact the state of mind of the complainant. As they cannot see into her mind, it will be necessary to examine all of the relevant facts including her words and conduct as they find them to be. As the Court of Criminal Appeal observed in R v Olugboja (supra):“[The jury] should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances; and in particular, the events leading up to the act, and her reaction to them showing their impact on her mind.”Thus, although the actus reus of the crime of rape is sexual intercourse with another person without the consent of that other person and although consent is a state of mind, a direction that consent relates solely to the complainant’s state of mind may, in certain circumstances, be quite unhelpful. In the particular circumstances of this case, the nature of the defence case was such that it was misleading to direct the jury in such terms. In this case, there was an issue whether the complainant had by her conduct signified consent. It was, therefore, necessary to direct the jury on that issue. For the reasons which appear later, the direction diverted the jury from that issue. I will return to that question after considering the appellants’ complaint that the trial judge wrongly admitted evidence from the complainant to the effect that she did not consent to sexual intercourse on that night.The Evidence of Lack of Consent The appellants had made an application before the trial that the prosecution not lead evidence from the complainant that she did not consent to sexual intercourse. It was contended that, if the prosecution case was that the complainant was so drunk that she could not consent, the complainant would not know whether she consented or not. The trial judge overruled this submission. In consequence, the prosecution led the following evidence:“Q.Did you remember at that time having sexual intercourse with anyone that night.A.No.Q.Do you now remember having sexual intercourse with anyone that night.A.No.Q.Did you want to have sexual intercourse with anyone that night.A.No.Q.Did you consent to sexual intercourse with anyone that night.A.No.”The first three questions were quite proper. The fourth was not. The prosecution case was that the complainant was in such a drunken stupor that she was not capable of granting consent. It is quite inconsistent with that position for the complainant to be permitted to say that she did not consent to sexual intercourse. Plainly, it was proper to ask her whether she did or did not recall what she said or did. In many cases, the complainant will have a clear recollection of events and will be able to give evidence describing her words and conduct and stating whether she did or did not consent. But in a case such as this, the complainant was in no position to say whether or not she consented. The complainant had given evidence that she could not remember events clearly after she had vomited. She had no recollection at all of either of the two acts of sexual intercourse. She was not in a position to say whether she consented or not. More particularly, she was not in a position to say whether immediately prior to each act of sexual intercourse occurring she consented to it. The complainant was giving evidence of a conclusion on a matter of fact when she was in no position to reach that conclusion. It was for the jury to determine, in the light of all of the evidence, the question of fact whether she did or did not consent. The evidence was wrongly admitted.The Direction on Consent

Decision

Reasons for decision

DEBELLE J SULAN J (dissent)
The case for the appellants was accurately and fairly put to the jury. Earlier in these reasons extracts from the judge’s summing up addressing the defence of each appellant has been identified. The defence case on the issue of consent to sexual intercourse was summarised by the judge. The alternative case of a lack of knowledge or a lack of reckless indifference was also identified. The judge gave appropriate directions to the jury concerning the onus of proof. There is no substance to this complaint.Conclusion The appellants have not established any basis on which this court should interfere with the convictions. The appeals should be dismissed. I agree that this appeal should be dismissed, for the reasons given by Gray J.JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT1 R v Blayney & Blayney (2002) 220 LSJS 1022R v Brown (1975) 10 SASR 139 at 147 per Bray CJ; Athanasiadis (1990) 51 A Crim R 292 at 294 per King CJ; R v Wozniak (1977) 16 SASR 673 R v Ball (1991) 56 SASR 126 at 127; 53 A Crim R 461 per King CJ4Counsel for Daniel Blayney in the written submission correctly acknowledged - “with respect to gross intoxication where a victim is drugged or asleep, such that the victim is incapable of consenting, it is conceded by the appellant that that could not equal true consent”.5 see Question of Law (No 1 of 1993) (1993) 59 SASR 2146 [1981] 3 All ER 4437R v Mayers (1872) 12 Cox CC 311; R v Young (1878) 14 Cox CC 114. See also R v Camplin (1845) 1 Cox CC 220; R v Page (1846) 2 Cox CC 133; R v Fletcher (1859) Bell CC 63 at 71; Lang (1975) 62 Cr App R 50; R v Francis[1993] 2 Qd R 3008[1996] 1 Qd R 641 at 646. In R v Parsons [2000] QCA 136 the court faced a challenge to a conviction for rape on the basis that the trial judge had erred in directing the jury on the issue of consent. In summing up it was said that to prove rape, actual lack of consent need not, in addition, have been communicated to the accused by word or conduct. The judge quoting Shaw observed:…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…In R v Pryor [2001] QCA 341 the court observed:…no greater force is needed to commit the crime of rape than what is actually necessary to effect penetration; no element of violence is necessarily involved. The woman does not have to forcibly resist in order to establish the absence of consent…It is a question of fact for the jury to determine in each case whether the woman consented; of course, it is for the prosecution to negative consent beyond reasonable doubt. 9R v Hornbuckle [1945] VLR 281; [1946] ALR 71; R v Daly[1968] VR 257 at 258-9; R v Flannery[1969] VR 31; R v Sperotto [1970] 1 NSWR 502 at 504; R v Brown (1975) 10 SASR 139 at 154-5 per Wells J; R v Wozniak (1977) 16 SASR 67 at 71 per Bray CJ (Mitchell J concurring), at 77 per Bright J; R v Maes[1975] VR 541; R v Saragozza[1984] VR 187 at 191; (1983) 9 A Crim R 185; Hemsley (1988) 36 A Crim R 334 at 336 per Yeldham J; R v Newham (unreported, CCA(NSW), Clarke JA, Grove and Abadee JJ, No 60149/93, 26 November 1993, BC9302299)10 (1973) 129 CLR 460 at 47111 (3rd ed, 1955) Vol 10, par 85912 See above note 8 at 46913 [2001] SASC 25 at [145-147]14 Domican v The Queen (1991-1992) 173 CLR 555 at 561

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J,

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