R v C

[2003] QCA 561

SUPREME COURT OF QUEENSLAND

CITATION:

R v C [2003] QCA 561

PARTIES:

R
v
C

(appellant)

FILE NO/S:

CA No 303 of 2003

DC No 90 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

19 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2003

JUDGES:

de Jersey CJ, Williams JA and McMurdo J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – CONSENT – GENERALLY – where appellant convicted of rape – where complainant may have indicated limited opposition to sexual intercourse – whether complainant consented to sexual intercourse – whether open to jury to find appellant guilty of rape

Criminal Code 1899 (Qld), s 24, s 348

Holman v R [1970] WAR 2, considered

COUNSEL:

A J Glynn SC for the appellant

B G Campbell for the respondent

SOLICITORS:

Johnson Solicitors for the appellant

Director of Public Prosecutions (Queensland) for the respondent

1. :de JERSEY CJ  The appellant appeals against his conviction on one count of rape.  He was charged with three counts of rape and three counts of assault occasioning bodily harm, all in relation to the same complainant.  He was convicted on two counts of assault occasioning bodily harm, in addition to one count of rape.  The notice of appeal challenged all of the convictions, but the appeal in relation to the charges of assault occasioning bodily harm is not pursued.  The disparate results on those charges may be explained by the circumstance that those on which the jury convicted were the only instances in which the complainant complained of, or sought treatment for, the injuries inflicted by the appellant.  The alleged rapes of which the appellant was acquitted occurred about six months before the rape of which he was convicted, which occurred on 20 February 2002.

1. The only ground of appeal pursued in respect of the rape conviction is expressed as follows:

“(i)The jury failed to give proper weight to the evidence from the complainant supporting the fact that the Appellant had an honest and reasonable but mistaken belief that the complainant was consenting to sexual intercourse on the 20th February 2002;

(ii)That the jury was satisfied that the Crown had negatived this defence beyond reasonable doubt.”

There is no suggestion the learned trial Judge’s instruction to the jury was inadequate.

1. The complainant gave evidence of a tempestuous and sometimes violent relationship with the appellant.  On the relevant day, the appellant and the complainant were living apart, although maintaining a relationship.  They went dancing.  A dispute arose, and the appellant drove with the complainant in her car to his unit, for the purpose of dropping him off.  When they arrived at the unit, the appellant would not let the complainant leave, and was abusive and violent towards her.  He demanded the return of some flowers he had given her earlier in the evening and then drove her vehicle to her unit to retrieve them.  They drove back to the appellant’s unit.  He again would not let the complainant depart, and was expressing views about their relationship, in the course of which he hit her hard more than once in the face.  (That was one of the instances of assault occasioning bodily harm of which he was convicted.)  With a view to regaining control over her vehicle, the complainant managed to get the appellant out of the driver’s seat, with the suggestion they go for a walk.  After a short time, the complainant got into the driver’s seat, but the appellant pulled the keys from the ignition. She pleaded to be allowed to go home.  The appellant said he wanted to “make up” for hitting her, and asked to “make love”, and the complainant said “no”, but as she explained in her evidence, “I had to say it very gently because from past experience … I thought he would have done it again” (that is, hit her).  A conversation ensued in which the appellant, in a threatening tone, said “this is not a game”.  The complainant suggested in her evidence that she felt constrained to permit the appellant to drive her, in her vehicle, back to her unit.  Before they left, the appellant said that “he wouldn’t make love and that he wanted to come back to [her] place with [her] and spend the night”. 

1. The theme of the complainant’s evidence was that she was seeking to avoid antagonising the appellant, out of fear of his assaulting her.  Back at her unit, she went into the kitchen, in order to distance herself from him, but he followed, and began cuddling and kissing her, at which she said:  “No, you said you wouldn’t do this.”  He continued to hold and kiss her.  Her evidence in chief was:

“I was just too afraid to stand up and say “no” firmly, because I just believed I would have been hit again, but I was saying, “You said you weren’t going to do this.”  I was saying, “I don’t want to do this.  Let’s just go to sleep.”, and I kept saying things like that, gently and softly, so as not to, you know, make him angry.”

But the appellant persisted, removing her clothing, and she continued, if in a “gentle” way, as she put it, to indicate her opposition.  He positioned her on a bench top in the ensuite and had sexual intercourse with her.  Her evidence in chief was as follows:

“I was just too afraid to – at that point there was just no way it was going to not happen, so – you know, there was – nothing about it was about love.  It was just about, you know, attack, and I just had to get through it, safely.”

1. The complainant then drove the appellant to his home, at his request, and then made an immediate complaint to the police. 

1. The appellant gave evidence that the complainant was a willing indeed eager participant, evidence which the jury plainly rejected. In determining whether the Crown had excluded the operation of s 24 of the Criminal Code, the jury’s focus would then have rested on the complainant’s evidence.

1. Counsel for the appellant relied particularly on the complainant’s evidence in cross-examination, in which she agreed with suggestions that the appellant had been “very gentle” in his physical treatment of her in the events immediately preceding the act of intercourse, a period in which she expressed what she termed “minor resistance”, “verbal resistance”.  Her evidence under cross-examination, as to the act of intercourse, was as follows:

“And he then entered your vagina with his penis? – Yes.

What did you do at that time? – At that time I was doing everything possible to get it over and done with as fast as possible.

So what did you do, ma’am? – So I was holding on to him.

What else? – I do not recall, but I may have kissed him.

You may have kissed him? – Just to get it over and done with safely and fast so I wouldn’t be hit again.

So you may have kissed him in a way that might have caused him to have sex with you in a way that would end it quickly.  Is that what you’re saying? – Yes.

And, indeed – ? – And indeed it did.

Sorry? – And indeed it did.

So by kissing him as you did it made him ejaculate quickly.  Is that what you’re saying? – That was the intention.”

1. The submission of Counsel for the appellant was this:

“The clear effect of this evidence is that although the complainant says she verbally indicated lack of consent, she also describes acting in a way that encouraged in him a belief that despite her words she was enthusiastically participating in what was occurring.  This is not to say that “no” means “yes”, but rather that she led him to believe that “no” means “yes”.  She says effectively that she wanted to stimulate him as that would effect an early end to the activity.”

1. The submission brings to mind the reference, under earlier law no longer applicable,  to reluctant or grudging consent:  see Holman v R [1970] WAR 2, 6 per Jackson CJ. Mr Glynn SC, appearing for the appellant, submitted that the evidence going to a perception of consent, while not all one way, was strongly one way.

1. The contrary submission for the Crown was that “the complainant had repeatedly expressed her lack of consent and it was open for the jury to conclude that it was neither honest nor reasonable for the appellant to believe she was consenting”. 

1. I accept the force of that Crown response. The act of rape is complete upon any degree of non-consensual penetration, the only relevant ‘consent’ being that “freely and voluntarily given” (s 348 Criminal Code). In the events leading up to the penetration, the complainant had repeatedly expressed her opposition, but met with the appellant’s apparent determination to continue. The circumstances of the assault earlier in the evening, and the appellant’s other erratic behaviour, constitute a significant context, tending to explain, for example, why her subsequent – and repeated – expressions of opposition were rather muted. Notwithstanding the tenor of the passage extracted above from the complainant’s evidence given under cross-examination, the jury was entitled to take the view that it was established beyond reasonable doubt that the appellant could not honestly and reasonably have believed that the complainant was in fact consenting to his penetration of her vagina. This was, in short, a “classic jury question”.

1. I would dismiss the appeal.

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of the Chief Justice and I agree with them. 

1. The evidence appears clear that until the appellant effected penetration (making the offence of rape complete) the complainant was clearly indicating she was not consenting to sexual intercourse occurring. Her conduct thereafter in seeking to bring the act of intercourse to an end as quickly as possible did not mean either that she was a consenting party or that there was evidence which made the jury’s rejection of a s 24 defence unreasonable.

1. The appeal should be dismissed.

1. McMURDO J:  I agree with the reasons for judgment of the Chief Justice and Williams JA.

1. The jury had to consider whether the appellant had an honest and reasonable belief of the complainant’s consent, against the circumstance of the appellant’s violent behaviour towards her, and in particular his hitting the complainant several times a little earlier that night.  It was then open to the jury to find that a belief of consent was not reasonably held, because the appellant ought to have known that any lack of resistance was because the complainant was in fear of him.

1. The appeal should be dismissed.