R v BLAYNEY & BLAYNEY
[2003] SASC 405
Court of Criminal Appeal: Debelle, Gray and Sulan JJ
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.
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.
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.
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.
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.
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.
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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CaseChat Overview and Summary
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.
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Background
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Ratio Decidendi
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Established by: DEBELLE J,
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