R v Blayney

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 just had a kid”. She said she felt pressure on her stomach. She said that, because of her intoxicated state, she still could not move or say anything. She said that the next thing she remembers was her name being called and her jeans being pulled up. She was told to move so that her jeans could be pulled up but she cannot say who it was who was involved. Her next memory was being woken up next morning by Daniel Blayney. She was then on the back seat of Erik Blayney’s motor vehicle.
The complainant said that she could not remember any act of sexual intercourse. She said that, when she woke up, she was not sure if something had happened to her that night. She was aware that her underpants were down and she could smell semen. After she had woken up, she went into the house with Daniel Blayney and later went to Victor Harbor with both appellants. The complainant did not complain to either Erik or Daniel Blayney or express to them any concern as to what had happened during the night. Erik Blayney was left at the hospital. The complainant then spent some time with Daniel Blayney. She then went home. On arriving at home she telephoned Kate Gerard saying to her that she thought she had been raped. As a result of what Kate Gerard said to her, the complainant went to a hospital and as a consequence the police were called. DNA evidence established the presence of semen from both Erik Blayney and Daniel Blayney in the complainant’s vagina. The complainant’s evidence was that she did not want to have sexual intercourse with anyone that night.
The Issue of Consent
It was the prosecution case that the complainant was so grossly intoxicated that she could not have consented to sexual intercourse and that it was plainly obvious to each appellant that she was in that state and so was not consenting to sexual intercourse. Shortly, if not bluntly stated, the prosecution case was that the complainant was so grossly intoxicated that she was in a drunken sleep or stupor and the appellants each took advantage of her.
The Defence Case
The appellants’ case was that they too were very drunk. When first spoken to by police officers, each appellant had denied engaging in sexual intercourse with the complainant. On being confronted with the DNA evidence, they accepted that sexual intercourse had occurred but said that they had no recollection of it, the implication being that each had drunk so much that his memory was affected. Neither appellant gave evidence. Instead, the evidence they had given at a previous trial was proved as part of the prosecution case and read to the jury. Both described conduct on the part of the complainant which constituted consensual sexual activity.
Erik Blayney described kissing and mutual fondling of the genitals of each other. His evidence was that he had no recollection of what had happened thereafter. Erik Blayney also gave evidence that he suffers from a muscular condition, myotubular-myopathy, which, he said, would have made it impossible for him to engage in sexual intercourse in his vehicle.
Daniel Blayney described kissing and hugging. He said that he had taken a doona out to his brother’s car to put over the complainant. He saw her in the back seat of the vehicle. He said that she was awake and spoke to him. She then put out her hand inviting him to come towards her. She pulled him into the car. He said that some consensual kissing and hugging followed. He described himself as being fairly drunk at the time. The next thing he says he remembers is vomiting outside the car. He then returned to the house. He has no recollection of sexual intercourse with the complainant.
Shortly stated, the appellants said that the complainant consented. Alternatively, the appellants said that, in consequence of their intoxication and the intimate sexual conduct of the complainant, they had a reasonable belief that the complainant had consented to sexual intercourse.
There was evidence from other witnesses concerning the manner in which the complainant and Erik Blayney had acted towards each other on that night. First, Mr Brett Threadgold gave evidence to the effect that, after the complainant had vomited and changed her clothes, she had come back into the lounge room and had resumed drinking with Erik Blayney. Brett Threadgold then suggested that both should slow down their drinking. There was also evidence from Melissa Peters, as well as from Erik Blayney and Daniel Blayney, that Erik Blayney and the complainant had later been on a lawn near the house. It was suggested in that evidence that the complainant was taking some fresh air to assist her to recover. She was described as lying on the lawn while Erik Blayney was sitting on the lawn. There were, therefore, a number of issues concerning the question of consent and the state of mind of each accused. I examine those issues when considering the direction on consent. It is apparent, therefore, that it was necessary to give a careful direction on the question of consent, the issues as to intoxication, and as to the state of mind of each appellant.
I deal first with the question of consent which carries with it the issues as to the degree to which the complainant was intoxicated.
The Issues as to Consent
On her evidence, the complainant was so grossly affected that she was in a drunken stupor unable to comprehend what was happening and unable, therefore, to decide whether to consent or not. A complainant may be so drunk that she is not capable of freely and voluntarily giving consent: The Queen v Camplin (1845) 1 Cox CC 220; R v Lang (1975) 62 Cr App R 50; R v Malone [1998] 2 Cr App R 447; R v Francis [1993] 2 Qd R 300. Similarly, if a complainant is asleep, she may be incapable of freely and voluntarily giving consent: R v Mayers (1872) 12 Cox CC 311. In each instance, the complainant has no comprehension of what is occurring and is incapable of making up her mind whether to consent or not. In this case, one question for consideration was whether the appellant was, by reason of the amount she had drunk, rendered incapable of deciding whether to consent or not: R v Francis (supra) at 305. In other words, the question was whether she was aware of what was happening and whether she was capable of deciding whether to consent or not. On the prosecution case, she was not capable of coming to any decision and so unable to consent.
It is, of course, a question of fact as to the complainant’s level of intoxication or state of sleep and whether she consented to sexual intercourse. It is necessary to distinguish between cases where the intoxication is so gross that the complainant is unable to consent and those cases where the complainant is not so severely intoxicated and she consents to sexual intercourse either because her inhibitions are reduced or for any other reason. The distinction is noted in R v Francis (supra) at 305. Notwithstanding that the terms of the Criminal Code in Queensland differ from s 48 of the Criminal Law Consolidation Act of this State, the remarks of the Court of Criminal Appeal in Queensland are apposite. See also, C v T (1995) 58 FCR 1, 17 – 18. This accords with the principle expressed in Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261:
“To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.”
In this case, it was necessary, therefore, for the jury to be carefully instructed on the issues as to the intoxication bearing on the question of consent with appropriate directions as to the evidence on those issues.
There was an issue as to whether the complainant was possessed of sufficient faculties to consent. There was an alternative issue whether her degree of intoxication may have induced her to engage in consensual sexual activity and whether that activity was of a kind which constituted consent or might reasonably be believed to be consent.
It is against that background that the issues in the appeal need to be considered. The grounds of each appeal are different. However, there are some common issues. Both appellants complained of the trial judge’s directions on the issues of consent. Both also complained that the complainant was permitted to give evidence that she did not consent. Before dealing with each issue, it is convenient to examine what constitutes consent for the purposes of the crime of rape.
What Constitutes Consent?
In the context of the law of rape, it is well established that consent must be free and voluntary: Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214 at 220, 233 and 237. The question whether a complainant has consented is a question of fact.
Consent is, of course, a state of mind. The question whether a complainant has consented to the act of sexual intercourse will arise in a wide variety of circumstances. On some occasions, the complainant may, by words or conduct or both, signify whether she gives consent: R v Wilkes & Briant [1965] VR 475 at 481. On other occasions, the complainant may not say or do anything as, for example, where it is alleged that threats or violence by the accused have so overborne the complainant that she is afraid to say or do anything and submits to the act of sexual intercourse in order to bring a terrifying ordeal to as speedy a conclusion as possible. It is unnecessary, if not impractical, to examine all of the possible combinations of fact and circumstances in which the question of consent will arise. It is sufficient for the purposes of this appeal to notice that, although consent is a state of mind, it may on occasions be evidenced by words or conduct or both. It must also be noticed that such is the variety of circumstances that the issue of consent will, as a general rule, require some further direction: R v Olugboja [1982] QB 320 at 332; R v Wilkes & Briant (supra) at 478 – 479, 480 – 481.
In this case, the issues on the question of consent required a careful direction. It was not a case where it was alleged that the complainant had acquiesced in consequence of threats or violence. Nor was it a case where there was an allegation that consent was negated by fraud or mistake. Nor was it a case of sober or relatively sober complainant and accused, both capable of appreciating what was occurring. Instead, the prosecution case was that the complainant was in such an intoxicated state that she was in effect in a drunken stupor incapable of granting consent. The defence case was that, although the complainant was intoxicated, she was not so intoxicated that she could not understand what was occurring and so was capable of freely and voluntarily giving consent.
It was, therefore, necessary, when directing the jury on the question of consent, first to direct on the law that a person by reason of being in a drunken stupor may be unable to grant consent and, having done so, then turn to the issues raised by the defence case as to whether the complainant, though intoxicated, was capable of granting consent. This latter issue required a direction as to whether the complainant was capable of understanding what was occurring, was capable of granting consent, and whether she said or did anything which signified consent. When putting the defence case, it was also necessary to direct the jury on the question whether the complainant’s conduct would have caused the appellants to have a reasonable belief that the complainant was consenting to sexual intercourse.
I will in a moment examine the application of the above reasoning to the direction in this trial. I simply note at this stage that the trial judge directed the jury that consent “relates solely to the [complainant’s] state of mind”. Certainly, the question whether she did consent is concerned with her state of mind. However, for the reasons already given, that direction oversimplifies the situation in that it fails to recognise that a complainant may, by words or conduct or both, indicate that she is consenting to the sexual intercourse.
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
I turn to the appellants’ complaint concerning the trial judge’s directions on the issue of consent. Before examining that question, I deal with the manner in which the trial judge emphasised the complainant’s evidence that she did not consent to the acts of sexual intercourse.
The complainant’s evidence on this question was not something merely said in the course of evidence. The trial judge expressly emphasised it in her direction. The trial judge said:
“ Then the prosecution must prove that that intercourse occurred without the consent of [the complainant]. ‘Consent’ means a free and willing decision to have intercourse with a particular man at that particular time and place. This element relates solely to [the complainant’s] state of mind. She has told you that she did not give consent to having intercourse of any kind with either of the accused men. Moreover, she said she was heavily asleep and, if so, she could not have given consent to penetration of her body at that time.”
The direction errs in two respects. First, it gives an emphasis to the inadmissible evidence. In this way, the inadmissible evidence received an unwarranted status. It received the stamp of the judge’s authority. Secondly, for reasons already given, it is not correct to say that consent relates solely to the complainant’s state of mind. The question whether the complainant had consented depended not only upon her state of mind but also upon what she communicated by her words or conduct or both. Shortly stated, the effect of the judge’s direction was that the only relevant fact in connection with the issue of consent was the complainant’s state of mind and she had given evidence that she did not consent. The jury would thereby conclude that the prosecution had proved that the complainant did not consent. The direction was manifestly defective.

The trial judge continued by correcting a submission made to the jury by counsel for Erik Blayney. I will return to that issue. Immediately thereafter, the trial judge continued.
“ Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or protest. Mere submission in consequence of force or threats or for any other reason is not consent. Remember the second element focuses entirely on the complainant’s state of mind.”
This direction too is quite unhelpful. Again, there is more than one defect. This was not a case of submission in consequence of force or threats. There was no suggestion of any physical violence or of threats or of any physical struggle. To the contrary, the complainant’s evidence was that, with some exceptions, she did not know what happened to her and the appellant’s evidence was of consensual sexual conduct.
The misleading nature of the direction is accentuated by the reiteration of the direction that the issue of consent “focuses entirely on the complainant’s state of mind”. The jury’s attention was expressly drawn to the earlier part of the direction in the same terms when the jury had been reminded of the complainant’s evidence that she did not consent.
The direction also obscured the issue whether the complainant was not as intoxicated as she had deposed and whether there was a reasonable possibility that by her conduct she had consented to sexual intercourse or that the appellants might reasonably have believed that she was consenting.
The issues at this trial concerned the state of intoxication of the complainant, her capacity to understand what was happening and her capacity to decide whether or not to consent. The facts of this case required the trial judge to direct the jury on at least the following issues which were material to the question whether the complainant had consented.
(1)    Was the complainant so intoxicated that she was unable to comprehend what was occurring and so was unable to grant consent?
(2)    Was the complainant so intoxicated that it was obvious that she was not in a position to consent?
(3)    If the jury found that the complainant was not grossly intoxicated, what was her state of intoxication and was she able to comprehend events and so be able to decide whether or not to consent?
(4)    Did the complainant consent?
The directions given by the trial judge did not spell out these issues to the jury and, indeed, diverted the jury away from them. There was an emphasis only on the complainant’s state of mind and her inadmissible evidence on that issue so that the jury were diverted from examining other issues as to consent which had arisen in the trial. In particular, they diverted the jury away from the question whether the prosecution had proved that the complainant was so drunk that she could not give consent and, if not, whether the prosecution had proved that the complainant had not acted so that either her words or conduct could be construed as consent.
Towards the end of the direction, the trial judge referred to the issue of intoxication, mentioning how it might affect the capacity of individuals to recall events which had occurred while they were intoxicated. The judge also referred to the fact that people affected by liquor may become less inhibited. She made the following remarks concerning the complainant and the appellants:
“ You all have experience of people who have been affected by liquor, even to the point of being drunk and the way in which their behaviour can change. You may think that people may become less inhibited when affected by liquor and that may mean that their underlying mood is more starkly presented to the world. That mood might be one of anger, sadness, affection or anything else. And so you may think that people affected by liquor can behave differently from the way in which they do when they are sober.
You might consider that when you come to [the complainant’s] behaviour on that evening and night. When she gives an account of that night now, she does so as a person unaffected by liquor. She probably looks back on the night through sober eyes, in other words. She might want to see her behaviour in a particular way and that may have flavoured the account which she now gives, perhaps unconsciously. Moreover, she might have been acting in a more forward way to these men than she now remembers or admits. Did she perhaps, in a drunken state, behave in a forward or suggestive way to both accused men? Did she encourage sexual activity? Did her condition cause her to behave irresponsibly and to behave in a way she never would have done if sober? All those matters are for you. You saw her give evidence and you saw her cross-examined and you know a good deal about the events of the night generally from the witnesses from whom you have heard. All those matters are for you.”
I do not think this direction remedies the defects to which I have referred. I am encouraged to reach that conclusion because, at the close of the direction, the trial judge referred again to the issue of consent in these terms:
“ So much for liquor. But let me add a comment of my own in relation to what I have just said that may or may not assist you. In a sense, as I have explained, all three elements are live issues in this trial. But it may be that ultimately you will see this case as turning on the second element: proof of actual lack of consent. Because the defence cases of both men are that there was consensual sexual activity by [the complainant] leading up to the period when intercourse must have occurred. If there was, then the prosecution would probably fail to prove this second element.
If you were satisfied there was not, then it is hard to see that there could have been any room for either accused to believe that [the complainant] was consenting to intercourse. Therefore, I suggest the critical element of the charge is the second, in the circumstances of this case. But, having said that, you may see it differently, and the facts are for you and not for me.”
Here again, the judge emphasises the question of consent, saying that it was the “critical element” in the circumstances of the case, a comment which was likely to remind the jury of the earlier directions on consent. As the jury had been instructed that consent was a state of mind, they were likely to be satisfied that the complainant had not consented.
In R v I A Shaw [1996] 1 Qd R 641 at 646, Davies and McPherson JJA said that, when 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 a detailed analysis of the question whether the complainant consented. In many cases, that may be so. However, this was not the usual case. While it was common ground that the complainant was severely affected by liquor at all relevant times, there were issues of fact as to how badly affected she was and the resolution of those issues had a material bearing on the issue of consent.
The Direction on Distress
The trial judge directed the jury as to the manner in which it should use the evidence of distress exhibited by the complainant in the course of her telephone conversation with her friend, Kate Gerard. The trial judge correctly directed on that issue. However, the appellants complain that the direction was inadequate in that it failed to remind the jury of the fact that the complainant had spent most of the Sunday morning in the company of one or both appellants without exhibiting any distress or concern. Counsel for Daniel Blayney had asked the judge to correct the direction by contrasting the complainant’s conduct on the Sunday morning with the evidence of the later distress. The trial judge refused to do so. Given that consent was such a live issue at the trial and given that the evidence of distress was relevant to the issue of consent and the consistency of the complainant’s evidence on that issue, the trial judge ought to have recalled the jury to remind them of the events of the Sunday morning. There was, of course, a risk that the issue would receive some over emphasis in consequence of the direction but a fair presentation of the defence case required the correction.
Failure to put the Defence Case
Erik Blayney also complained that the trial judge failed adequately to put the defence case to the jury. The effect of the trial judge’s direction was that there was simply an issue arising from the two differing accounts given by the complainant and the appellants on the issue of consent. As already mentioned, the trial judge had referred to the issue of consent as “the critical element of the charge”. That was a severe over-simplification of the issues. One other question was whether the appellants had a reasonable belief that the complainant had consented. There were one or two oblique references to that issue in the course of the direction but, viewed as a whole, the direction was plainly inadequate on that score. The importance of putting the defence case fairly to the jury in a trial for rape where consent is in issue was spelled out by Smith J in R v Wilkes & Briant (supra) at 479.
For all of these reasons, I believe that the direction contained errors and failed to put the defence case so that there was a miscarriage of justice. It is unnecessary, therefore, to deal with the ground in Erik Blayney’s appeal that the judge had wrongly corrected the submissions made by his counsel. It is sufficient to state that I believe that the judge was justified in correcting the submission.
For these reasons, I would allow each of the appeals.
Retrial or Acquittal?
The appellants contended that, if these appeals are allowed, a new trial should not be ordered but there should be an order of acquittal.
This was a second trial for these alleged offences. Each trial has resulted in a conviction. In addition, there have been two earlier mistrials. After the first trial, the appellants were each sentenced to four years’ imprisonment with a non-parole period of 16 months. The appellants served four and a half months in custody and a further two months on home detention. After the second trial, the appellants were each sentenced to three years, seven months’ imprisonment with a non-parole period of 11 months, with sentences commencing on 6 May 2003. The trial judge gave each of the appellants credit for the time already served in custody. The appellants have now served over six months of that sentence. They have therefore served over 10 and a half months in custody.
There are competing factors. First, the strength of the prosecution evidence indicates that a new trial would in the ordinary course be ordered. However, there have already been two trials, two mistrials, and two appeals. That has inevitably caused a long delay. The events, the subject of these charges, occurred more than five years ago. The recollection of witnesses will inevitably be fading. The appellants have already served a substantial period of the non-parole periods. In all the circumstances, I believe that the proper course is not to order a new trial but to enter a verdict of acquittal.
For these reasons, I would allow each appeal and in each matter direct an order of acquittal.
GRAY J
Introduction
These are appeals against convictions
The appellants Erik Andrew Blayney and Daniel Lloyd Blayney were charged with rape. They pleaded not guilty. Their joint trial began on 12 June 2001 before a judge and jury. At the conclusion of the complainant’s evidence the judge declared a mistrial. The matter was listed for a re-trial on 4 December 2001. A mistrial was again declared.
The appellants’ trial commenced for a third time on 6 December 2001. Both Erik and Daniel Blayney gave evidence. On 13 December 2001 the jury returned verdicts of guilty. Appeals were lodged. On 25 June 2002 the Court of Criminal Appeal allowed both appeals and set aside the convictions. A re-trial was ordered.[1] The fourth trial proceeded before the District Court on 17 March 2003. Erik and Daniel Blayney were convicted of rape by jury verdicts on 25 March 2003. It is from these convictions that they appeal.
[1] R v Blayney & Blayney (2002) 220 LSJS 102
Crown Case – A Summary
It was the Crown case that Daniel and Erik Blayney raped the complainant while she was grossly intoxicated. She had known Erik Blayney for about four or five years. They had not seen each other for some time as Erik Blayney had been living interstate. The complainant knew Daniel Blayney but not as well. The complainant was 18 years of age.
On Saturday 23 May 1998 the complainant attended a barbecue at her friend Kate’s home. The complainant consumed three alcoholic drinks. She decided to stay the night at Kate’s home and called her mother to let her know that she would not be coming home that night. During the conversation that followed the complainant’s mother said that Erik Blayney had been trying to contact her. He was “in town” and wanted to “catch up”. The complainant’s mother gave the complainant Erik Blayney’s telephone number.
The complainant telephoned but did not speak with Erik Blayney. She left a message and her telephone number. Later that evening she received a telephone call from Daniel Blayney. He invited her to his friend Brett’s home at Victor Harbor. Brett was hosting a celebration to mark the birth of Erik Blayney’s new baby. The complainant told Daniel Blayney that she had been drinking and could not drive. He offered to collect her. The complainant agreed.
At around midnight Erik Blayney in the company of Daniel Blayney and Melissa, Brett’s girlfriend, collected the complainant and Kate. The complainant, Kate, Erik and Daniel Blayney, Brett and Melissa attended the property near Victor Harbor. Everyone except Brett played a “drinking game”. This involved “skulling” alcoholic spirits. The complainant became intoxicated. She vomited whilst participating in the game. She was taken to the bathroom by Kate and Melissa. Her clothes were changed. Erik Blayney came into the bathroom and took the complainant outside. She said that she recalled trying not to vomit and was having trouble walking. She recalled being taken to Erik Blayney’s four wheel drive vehicle. She recalled curling up on the backseat and trying to sleep. She said that she wanted to be left alone.
The complainant had little memory of the events that followed. She recalled minor details and brief snatches of speech and incidents. When lying in the vehicle she felt someone unbuttoning her shirt. She heard a voice say ‘Back off, you’ve just had a kid’. She was not able to move or speak due to intoxication. She had no idea of who was with her in the vehicle. Her next memory was having her jeans pulled up. She was told to move so that this could occur.
The complainant remembered nothing more until she was woken by Daniel Blayney later that morning. She awoke in the rear of the vehicle. Her underpants had been pulled down and she could smell semen. She and Daniel Blayney went inside. When Erik Blayney woke up he drove Daniel and the complainant to Victor Harbor. Daniel Blayney and the complainant purchased something to eat. Erik Blayney left and drove to the hospital to visit his partner and baby. After eating, Daniel Blayney and the complainant caught a taxi to the hospital and met Erik Blayney. He was leaving with his partner and baby. The complainant was then taken home.
The complainant said that because she had spent much of the morning with Erik and Daniel Blayney, she did not immediately complain about what she believed had occurred. However when she was alone for the first time that day she telephoned Kate in an effort to piece together what had happened the previous night and in the early hours of that day. The complainant was distressed. She questioned Kate as to what had occurred. Following this conversation complaint was made to the police. Later that night the complainant was examined by a medical practitioner.
Police spoke with Erik and Daniel Blayney the following day. They denied having sexual intercourse with the complainant. Blood samples were taken from both accused for DNA testing. It was the Crown case that Daniel Blayney’s semen was present on a “high vaginal swab”. This indicated that sexual intercourse had recently taken place. His semen was also found on the “labial swab” and on the complainant’s underwear. Erik Blayney’s semen was present on the “labial swab” and the complainant’s underwear.
The complainant’s evidence was that she did not want and did not initiate or encourage any sexual contact with either Erik or Daniel Blayney. She said that she did not consent to sexual intercourse with either man.
Defence Case – A Summary
Erik and Daniel Blayney were separately represented at trial and on appeal. Similar defences were raised. Neither gave evidence. However, the evidence they gave during the third trial was tendered by the Crown.
As earlier observed when initially spoken to by police, Erik and Daniel Blayney denied that they had engaged in sexual intercourse with the complainant. However following the return of the DNA test results, Daniel Blayney accepted that sexual intercourse with the complainant must have occurred. In a subsequent interview with police he said that he recalled intimacy with the complainant, but he did not recall having sexual intercourse. Erik Blayney admitted that he had engaged in intimacy with the complainant. He too accepted that sexual intercourse with the complainant must have occurred. However, he had no memory of sexual intercourse having occurred.
Erik Blayney said that although the complainant had vomited in the bathroom she had been able to talk and laugh as she leaned on him for support. He said that they went outside together and then talked and kissed. He did not recall exactly when or how that had happened. His next memory was smoking a cigarette. He remembered the complainant lying on the ground at some stage. He also recalled helping her into the back of his vehicle. Erik Blayney’s evidence was that he could not have had sexual intercourse with the complainant in the rear of the vehicle because he suffered from a muscular disorder – myotubularmyopathy. It was his case that this disorder made this activity in that location impossible.
At trial counsel for Erik Blayney submitted that Erik Blayney’s sexual contact with the complainant may not have extended to intercourse as Erik Blayney’s semen was found only on the “labial swab” and on the complainant’s underpants.
Daniel Blayney said that he recalled taking a blanket outside for the complainant. She was lying in the back of his brother’s vehicle. Daniel Blayney and the complainant kissed and consensual touching occurred in the vehicle. Daniel Blayney’s next memory was vomiting next to the vehicle.
At the earlier trial, both Erik and Daniel Blayney gave evidence of kissing and intimacy with the complainant. Each claimed that she consented to this contact. It was said that at the very least the Crown had failed to prove that the complainant did not consent to sexual intercourse. Counsel for the appellants argued that the complainant’s participation of an intimate nature with both men indicated that she consented to having sexual intercourse. It was contended that the Crown had not proven beyond reasonable doubt that either Erik or Daniel Blayney were aware that the complainant did not consent or were recklessly indifferent as to whether she was consenting. It was said that the complainant’s conduct in conjunction with Erik and Daniel Blayney’s intoxication gave rise to a reasonable possibility that they had a reasonable but mistaken belief that the complainant was consenting to sexual intercourse.
The Appeal
The Complaints
On appeal counsel for the appellants complained that the trial judge misdirected the jury on the question of consent. It was contended that the directions were inadequate and that there had been a miscarriage of justice. It was said that the complainant’s evidence that she did not consent to sexual intercourse with either Erik or Daniel Blayney should not have been admitted. It was submitted that the judge erred in directing the jury about the use of evidence of the complainant’s distress. Finally it was said that there was a failure to put the defence case.
The Statutory Offence of Rape

Section 48 of the Criminal Law Consolidation Act 1935 (SA) provides:
A person who has sexual intercourse with another person without the consent of that 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 and liable to be imprisoned for life.
The actus reus of the crime of rape is the act of sexual intercourse with another person without the consent of that person. As will be observed from the terms of section 48 the question of consent also arises as part of the issue of mens rea.
It was necessary for the Crown to prove beyond reasonable doubt that Erik and Daniel Blayney had sexual intercourse with the complainant without her consent each knowing that she did not consent to sexual intercourse or alternatively that each was recklessly indifferent as to whether the complainant consented to sexual intercourse.
The question of consent is one of fact to be decided by a jury. There are two limbs to the question of consent in the consideration of a charge of rape. Has the Crown proved that the complainant did not consent? Has the Crown proved that at the time sexual intercourse took place the accused knew that the complainant was not consenting or alternatively has the Crown proved that the accused was recklessly indifferent to whether the complainant was consenting or not? An accused may be said to be recklessly indifferent if sexual intercourse occurred when the accused did not care whether the other person consented.[2] - JD_130-2020Ftnt7 ‘Reckless indifference’ should be defined for a jury as knowledge on the part of an accused that the other person might not be consenting.[3]
Admissibility of Evidence
[2] R 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 67
[3] R v Ball (1991) 56 SASR 126 at 127; 53 A Crim R 461 per King CJ
At the first trial on 12 June 2001 the judge ruled that the evidence that the complainant did not consent to sexual intercourse with either Erik or Daniel Blayney was inadmissible:
In so far as the victim gives evidence, if she cannot now remember all the events of that night and what happened, either because her memory has been affected by alcohol she consumed or because she was, in fact, unconscious as a result of the consumption of the alcohol, she is unable to give evidence as to whether, during those periods, she said or did things which would amount to or would constitute an agreement on her part to the performance of an act of sexual intercourse.
During submissions prior to the commencement of the fourth trial, counsel for the appellants again submitted that it was impermissible for the Crown to ask the complainant ‘Did you consent to sexual intercourse with Erik or Daniel Blayney?’   The trial judge rejected this submission:
It seems to me the question of whether or not she consented and whether or not she may have consented is so fundamental to the trial that it would be quite artificial to prevent her from answering questions, going to it in the way she chooses to, and that the arguments put to me I see as matters going to cross-examination, not such as to undermine the admissibility of the evidence.
The complainant’s evidence included the following:
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.
There is an obvious logical difficulty in the complainant testifying as to her state of mind while unconscious as a result of the consumption of alcohol or in a deep sleep. This was not the purpose of the question. Moreover it was not the substantive effect of the complainant’s evidence.
The complainant said that she had no memory of having sexual intercourse with either Erik or Daniel Blayney. Her evidence indicated that she was not aware that sexual intercourse took place until some time later. As earlier observed she remembered isolated details of words spoken and actions. However she had no real recollection of her conduct or that of anyone else from the time she left the bathroom with Erik Blayney until she was woken later by Daniel Blayney and found herself in the vehicle. The complainant was unable to say of her own knowledge whether she consented to sexual intercourse at the time of intercourse with either man. She simply could not recall what happened.
The complainant was able to give evidence that she had no intention or wish to have intimate contact or sexual intercourse with either Erik or Daniel Blayney at any time whilst she was conscious and aware of her own actions. She was able to give evidence of her state of mind at any time whilst she was conscious that she did not consent to sexual intercourse. The challenged question and answer addressed the events of “that night”. The question addressed a period during which at least for substantial periods the complainant was conscious. This was necessarily implicit in the question and the answer. If the defence were concerned that there might be any ambiguity and that it might be thought that the complainant was giving evidence as to her state of mind whilst unconscious through intoxication or whilst heavily asleep then the matter could be readily addressed in cross-examination. The evidence was admissible. The complainant was also able to give evidence of her conduct upon realising what may have happened to her without her knowledge.
The judge’s directions on consent canvassed the complainant’s evidence that she did not consent to sexual intercourse with either Erik or Daniel Blayney:
Then the prosecution must prove that that intercourse occurred without the consent of [the complainant]. ‘Consent’ means a free and willing decision to have intercourse with a particular man at that particular time and place. This element relates solely to [ the complainant’s] state of mind. She has told you that she did not give consent to having intercourse of any kind with either of the accused men. Moreover, she said she was heavily asleep and, if so, she could not have given consent to penetration of her body at that time.
This direction emphasised that the evidence was given in the context of the complainant having said that she was “heavily asleep”. In substance the effect of the complainant’s evidence was that she did not consent to sexual intercourse with either Erik or Daniel Blayney at any time that she was conscious. If unconscious either as a result of alcohol or being heavily asleep, then she was could not have given consent[4]. The direction did not lead to a miscarriage of justice.
Directions as to Consent
[4] Counsel 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”.
In summing up the trial judge provided the following further directions as to consent:
Now, yesterday in his address to you, [counsel for Erik Blayney] put some suggestions to you about the law relating to the second element of consent and I want to take you to those because I direct you to disregard them and to, rather, have regard to the directions that I have just given you and which I shall reiterate in a moment. But in order to identify what it is I direct you to disregard, I am going to take you to what [counsel for the Erik Blayney] said yesterday just to refresh your memories. I am going to page 477. [Counsel for Erik Blayney] said : ‘Put simply, ladies and gentlemen, if someone was touching her sexually and she was aware of it happening and she was able to stop it but she let it happen, she is consenting. She might have let it happen because she wanted it to happen, ladies and gentlemen. She might have let it happen because she was embarrassed to stop it once it started. She might have been simply not bothered to stop it once it started. She might have thought it was too much effort to stop it once it started but if she was aware of it happening and she could have done something to stop it, if she was aware of it happening and she could have [d]one something to stop it, if she was physically able, if she wasn’t literally paralysed and literally incapable of saying ‘no’, if she could have stopped it but she let it happen she is consenting.’ Then at p.483 [counsel for Erik Blayney] went on: ‘Consent is not about whether [the complainant] wanted or desired to have sex or was sexually attracted to either of the Blayney brothers or wanted to have sex with more than one person that night. You might think in the context of this case that the issue of consent is better assessed from the reverse, that is because there was, on anyone’s version, no protest, no physical act, no spoken words. Isn’t the state of that evidence entirely consistent not only with actual consent on her part but, at the very least, a belief of consent on Erik Blayney’s part?’ In that last submission, [counsel for Erik Blayney] was moving to the third element, which I will come to in a moment. But rather than discuss with you the ways in which I tell you that submission is wrong, I will just reiterate what I say is the law, which you must heed.
Consent must be free and voluntary consent. It is not necessary for the victim to struggle or protest. Mere submission in consequence of force or threats or for any other reason is not consent. Remember the second element focuses entirely on the complainant’s state of mind. …
The judge’s direction that “mere submission in consequence of force or threats or for any other reason is not consent” accords with authority[5].
[5] see Question of Law (No 1 of 1993) (1993) 59 SASR 214
In R v Olugboja[6] the English Court of Criminal Appeal considered a statutory offence of rape comparably worded to section 48. The court commented:
so far as the actus reus is concerned, the question now is simply: at the time of the sexual intercourse did the woman consent to it? It is not necessary for the prosecution to prove that what might otherwise appear to have been consent was in reality merely submission induced by force, fear or fraud, although one or more of these factors will no doubt be present in the majority of cases of rape.
The court then further observed:
Although ‘consent’ is an equally common word, it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. We do not think that the issue of consent should be left to a jury without some further direction. What this should be will depend on the circumstances of each case. The jury will have been reminded of the burden and standard of proof required to establish each ingredient, including lack of consent, of the offence. They should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent: see R v Day (1841) 9 C & P 722 at 724, 173 ER 1026 at 1027 per Coleridge J. In the majority of cases, where the allegation is that the intercourse was had by force or the fear of force, such a direction coupled with specific references to and comments on the evidence relevant to the absence of real consent will clearly suffice. In the less common type of case where intercourse takes place after threats not involving violence or the fear of it … an appropriate direction to a jury will have to be fuller. They 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.
…
In addition to the general direction about consent which we have outlined, the jury will probably be helped in such cases by being reminded that in this context consent does comprehend the wide spectrum of states of mind to which we earlier referred, and that the dividing line in such circumstances between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of that case.
[6] [1981] 3 All ER 443
There are a number of factors which may be relevant to determining the question of consent. They will vary according to the particular circumstances of each case. A person who does not offer actual physical resistance to sexual intercourse is not by reason of that fact alone to be regarded as consenting to sexual intercourse. The words “whether or not physical resistance is offered” in section 48 make this clear. Situations of submission may arise if sexual intercourse occurs in circumstances involving force or fear of force, deception or fraud, mental incapacity, unlawful detention or where a person is asleep, unconscious or intoxicated[7].
[7] R 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 300
Mere submission of itself is not consent although it is an item of evidence that may be relevant when considering the question of whether the complainant consented. It may be relevant to whether the Crown has proved a lack of consent beyond reasonable doubt. It may also be relevant to the question whether an accused knew that the complainant did not consent or was recklessly indifferent as to whether the complainant was consenting. It may also be relevant to a suggestion that an accused had a reasonable although mistaken belief that a complainant was consenting. As Davies and McPherson JJ in R v Shaw[8] observed:
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...
[8] [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.
The trial judge’s direction to the jury that they were to disregard the submissions made by counsel for Erik Blayney on the question of consent were appropriate. Counsel had incorrectly summarised the law. The factors referred to by counsel as relevant to mere submission were items of evidence relevant to the issue of consent, but no more. It was necessary for the trial judge to direct the jury so that the correct position was put for the jury’s consideration. No error by the trial judge has been demonstrated.
The Crown had to prove beyond reasonable doubt that the complainant did not consent to having sexual intercourse with Erik and Daniel Blayney. The Crown was required to negate any reasonable possibility that the complainant had consented.
In the present case there was ample evidence to justify a finding beyond reasonable doubt that sexual intercourse with the complainant took place on the part of Erik and Daniel Blayney. The issue of consent as part of actus reus involved a question of the complainant’s state of mind. If the complainant was so intoxicated as to not to know what was occurring there could not be said to be free and voluntary consent. At times before the acts of intercourse took place the complainant had a limited awareness of events. Her evidence was that she did nothing to encourage either Erik or Daniel Blayney and that she did not consent.
The jury in determining whether they were satisfied beyond reasonable doubt whether the complainant consented were entitled to consider the evidence of the complainant about her state of mind in so far as she could speak of it and her evidence of her conduct on the night. The jury also were also entitled to have regard to the accounts of Erik and Daniel Blayney and the other witnesses concerning the complainant’s conduct as being evidence relevant to the complainant’s state of mind.
The trial judge outlined the elements of the offence and addressed the issue of consent as part of the actus reus. The judge summarised the defence cases and drew attention to the defence submission that consent as part of the actus reus had not been proved beyond reasonable doubt. Extensive reference was made to the cross examination of the complainant by counsel for both Erik and Daniel Blayney. The judge in her summing up said:
You all have experience of people who have been affected by liquor, even to the point of being drunk and the way in which their behaviour can change. You may think that people may become less inhibited when affected by liquor and that may mean that their underlying mood is more starkly presented to the world. That mood might be one of anger, sadness, affection or anything else. And so you may think that people affected by liquor can behave differently from the way in which they do when they are sober.
You might consider that when you come to [the complainant’s] behaviour on that evening and night. When she gives an account of that night now, she does so as a person unaffected by liquor. She probably looks back on the night through sober eyes, in other words. She might want to see her behaviour in a particular way and that may have flavoured the account which she now gives, perhaps unconsciously. Moreover, she might have been acting in a more forward way to these men than she now remembers or admits. Did she perhaps, in a drunken state, behave in a forward or suggestive way to both accused men? Did she encourage sexual activity? Did her condition cause her to behave irresponsibly and to behave in a way she never would have done if sober? All those matters are for you. You saw her give evidence and you saw her cross-examined and you know a good deal about the events of the night generally from the witnesses from whom you have heard. All those matters are for you.
…
Those are all questions for you to consider when you come to evaluate the evidence but you will see that at most points the evidence of heavy drinking may well have an impact. I have endeavoured to explain it will potentially impact on whether the prosecution has proved the second element, that is lack of consent on the part of [the complainant], and will perhaps have an even more critical impact on whether the prosecution has proved that the accused men knew she was not consenting.

The evidence justified the conclusion that the complainant did not consent to sexual intercourse with either Erik or Daniel Blayney. It was a matter for the jury to decide whether the Crown had established that the complainant was not consenting when each act of sexual intercourse occurred. The verdicts demonstrate that they were so satisfied. The challenged evidence even if inadmissible would not have misled the jury as they were aware that the complainant said that she was unconscious or heavily asleep and unaware of the acts taking place. The finding of lack of consent to sexual intercourse was amply justified.
Knowledge of Lack of Consent or Reckless Indifference
As earlier observed the Crown had to prove that each appellant knew that the complainant was not consenting or that each was recklessly indifferent as to whether she was consenting.[9]
[9] R 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)
The appellants submitted that the evidence supported the reasonable possibility that if the complainant did not consent then each appellant was honestly and reasonably mistaken that she was consenting. It was said that it would follow that the Crown had failed to prove beyond reasonable doubt the fact of actual knowledge or reckless indifference.
The judge’s direction included:
…You should consider whether their condition, in terms of having had a good deal of liquor, may have caused them to be disinhibited. Might they, or either of them, have behaved in a manner toward [the complainant] which they never would have done if sober.
Might their condition have led them to misunderstand some of [the complainant’s] behaviour? Might they have misinterpreted any affection she might have felt for them, or showed them, as being sexual interest in them. Particularly in a state of drunkenness and helplessness, might they have seen some sort of signal to themselves that their attentions would be welcome?
On the other hand, did the condition of either of them cause him to be more forward or more suggestive or even more aggressive than he otherwise might have been? Did it make him prepared to take risks that he otherwise would not have?
There is also the question of the effect of alcohol on the sleep of [the complainant]. You might consider that in view of the amount of spirits she had taken and her vomiting, that she was really very ill. In those circumstances, is it quite explicable that the two accused men, or either of them, were able to have intercourse with her without causing her to regain full consciousness. Of course, normally you would think that would be impossible.
The judge later returned to the issue of consent and directed the jury:
…let me add a comment of my own in relation to what I have just said that may or may not assist you. In a sense, as I have explained, all three elements are live issues in this trial. But it may be that ultimately you will see this case as turning on the second element: proof of actual lack of consent. Because the defence cases of both men are that there was consensual sexual activity by [the complainant] leading up to the period when intercourse must have occurred. If there was, then the prosecution would probably fail to prove this second element.
If you were satisfied there was not, then it is hard to see that there could have been any room for either accused to believe that [the complainant] was consenting to intercourse. Therefore, I suggest the critical element of the charge is the second, in the circumstances of this case. But, having said that, you may see it differently, and the facts are for you and not for me.
I move then to the third element. The third element relates solely to the state of mind of the accused. The prosecution must prove that the accused man, the one under consideration, either knew the complainant was not consenting or was recklessly indifferent as to whether she was consenting or not. In other words, at the very least, the prosecution must prove that the accused man realised [the complainant] might not be consenting but determined to proceed to have intercourse with her irrespective of her attitude.
The judge emphasised the use that the jury could make of the evidence and pointed out that the jury’s view of the complainant’s conduct towards Erik and Daniel Blayney prior to the alleged sexual intercourse was important. The trial judge’s direction on the question of mens rea was appropriate. The relevant issues were identified, the Crown and defence cases were summarised and appropriate directions given.
Complaint and Distress
Counsel for the appellants submitted that the trial judge erred in directing the jury that they were:
entitled to use the evidence of [the complainant’s] distress coupled with the evidence of what she must have said to [Kate] as evidence potentially showing a consistency in [the complainant] as between her actions on the following morning and the evidence she has given to you in court.
That is the only purpose to which you could put this evidence of complaint and distress.
Counsel for the appellants argued that the trial judge should have contrasted the evidence of the complainant’s distress with the evidence that she spent a considerable amount of time in the company of the two men earlier that morning. It was said that the judge did not explain to the jury that the evidence of distress could be used either to bolster or undermine the complainant’s credibility.
The trial judge summed up in the following terms:
[Kate’s] account of what [the complainant] said to her in that telephone conversation is presented to you not as material which directly proves the offences or either of them but rather as evidence from which you may, if you choose, imply that [the complainant] has been consistent in her account of what occurred to her. In other words, the evidence of [the complainant] in this court, coupled with the DNA evidence, is what the prosecution presents to prove that the offence occurred, but in assessing [the complainant’s] evidence you are entitled to have regard to what she said at a time close to the alleged offences and in circumstances where you may find there was some spontaneity. The question for you to ask yourselves is: does what [the complainant] said to [Kate] help us in assessing her credibility as a witness in this court? Does it tend to bolster her credibility as a witness of truth? It could do that if you saw that, in her actions in telephoning [Kate] on that morning and raising the issue of what had occurred the night before, she was being consistent with the account which she has given you in this court.
The same use could potentially be made by you of the evidence that during the telephone call [the complainant] was distressed. Now, distress, on her part, could be referable to matters other than any sexual assault the night before. Plainly, [the complainant] had very good reason to be upset with herself on account of her extreme drinking and vomiting the night before and, no doubt, she felt very unwell the next morning. But, again, you are entitled to use the evidence of her distress coupled with the evidence of what she must have said to [Kate] as evidence potentially showing a consistency in [the complainant] as between her actions on the following morning and the evidence she has given to you in court.
In R v Kilby[10] Barwick CJ quoted with approval the following passage from Halsbury’s Laws of England[11]:
The admissibility of the particulars of a complaint made soon after the commission of an alleged offence in the absence of the defendant by the person in respect of whom a crime is alleged to have been committed is peculiar to rape, indecent assault and similar offences upon females, and also offences of indecency between male persons. This evidence is not to be taken in proof of the facts complained of, but only as matter to be borne in mind by the jury in considering the consistency, and, therefore, the credibility, of the complainant's story, including the consideration of the question of consent if the prisoner raises that as a defence.
These observations confirm that the evidence of complaint is admissible because the making of a complaint may be supportive of the complainant’s credibility.
[10] (1973) 129 CLR 460 at 471
[11] (3^rd ed, 1955) Vol 10, par 859
Menzies J approved the language of judges:
which strongly emphasises that evidence of the recent complaint is admitted not as evidence of the acts complained of, but as affording greater probability that the evidence of the woman who has made such a complaint is true.
The evidence of a complaint was admissible because “of its tendency to show consistency in the conduct of the prosecutrix.”[12]
[12] See above note 8 at 469
In R v Green[13] this court discussed the use that could be made of distress on the part of a complainant. Olsson J observed:
Traditionally, evidence of distress of an alleged rape victim has been sought to be relied upon as corroboration, in situations when corroboration has, appropriately, been required in sexual offence cases. Such evidence is normally admissible, but there are very real limits to its probative value.
In the case of Knight (1966) 50 Cr App R 122 at 125 Parker LCJ went so far as to say that, whilst exhibition of distress at time of complaint was relevant for the consideration of the jury, it was really part and parcel of the complaint. Its probative value should not be over emphasised. He commented "... the distress shown by a complainant must not be over-emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence”.
As was pointed out in R vPahuja (No 2) (1989) 50 SASR 551, evidence of distress will normally only be admissible as evidence of consistency of behaviour (this going to credibility) and as part of the whole circumstances surrounding an alleged offence. (See also the discussion of the authorities in The Queen v Pitman (1985) 38 SASR 566.)
[13] [2001] SASC 25 at [145-147]
The judge identified the proper use that could be made of the evidence of the complainant’s distress. Distress was one aspect of the complainant’s evidence that could be taken into account by the jury when considering her credibility and the consistency of her evidence. The argument advanced by counsel for the appellants should be rejected. The trial judge’s direction was adequate. No error has been demonstrated.
Failure to put the Defence Case
The requirement of the respective cases for the prosecution and the accused must be accurately and fairly put to the jury as well settled[14]. However this requirement does not oblige the judge to put to the jury every argument put forward by counsel for an accused.
[14] Domican v The Queen (1991-1992) 173 CLR 555 at 561
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.
SULAN J               I agree that this appeal should be dismissed, for the reasons given by Gray J.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1       R v Blayney & Blayney (2002) 220 LSJS 102
2R 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 67
3      R v Ball (1991) 56 SASR 126 at 127; 53 A Crim R 461 per King CJ
4Counsel 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 214
6 [1981] 3 All ER 443
7R 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 300
8[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 471
11     (3^rd ed, 1955) Vol 10, par 859
12     See above note 8 at 469
13 [2001] SASC 25 at [145-147]
14     Domican v The Queen (1991-1992) 173 CLR 555 at 561

[2003] SASC 405

11 December 2003