R v Higgs

The appeal concerned a conviction for two counts of rape against the appellant, Mr Higgs, by a judge alone. The complainant was 16 years old at the time of the alleged offences. The central dispute at trial was whether the prosecution had proven the complainant's lack of consent and the appellant's reckless indifference to her consent. The appellant had claimed in a police interview that he believed the complainant was 17 years old.

The legal issues before the appellate court were whether the trial judge erred in his assessment of the evidence, specifically in failing to adequately consider the appellant's record of interview, whether the trial judge reversed the onus of proof by describing the appellant's evidence as "unlikely," and whether the trial judge adequately considered the reliability of the complainant's evidence, particularly in light of evidence that she had not had sex before.

Doyle CJ and David J held that there was sufficient material for the trial judge to conclude that the complainant was not consenting, that the appellant proceeded with intercourse regardless of the possibility of non-consent, and that he was recklessly indifferent to her consent. They found that the appellant's belief as to the complainant's age was a secondary issue, as findings on the alternative charges were not required. The majority concluded that the trial judge had not erred in his consideration of the record of interview, had correctly applied the onus of proof, and had adequately considered the complainant's evidence. They noted that defence counsel had not sought an adjournment or moved to abort the trial when the evidence of the complainant's virginity was inadvertently led.

Peek J, dissenting, found that the trial judge had erred by not considering the reliability of the complainant's evidence, made inadequate findings of fact where the parties' versions differed, and misused the evidence of the complainant's virginity. The appeal was dismissed by the majority, with Peek J dissenting and favouring a retrial.