R v McGuire

[2013] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGuire [2013] QCA 290

PARTIES:

R
v
McGUIRE, Geoffrey
(appellant)

FILE NO/S:

CA No 293 of 2012
DC No 169 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

4 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2013

JUDGES:

Fraser and Gotterson JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of rape – where a group including the appellant and the complainant had stayed overnight at the same apartment – where the complainant had not met the appellant previously and had only interacted with him briefly – where the complainant gave evidence that she suffered from medical problems which made sexual intercourse uncomfortable and that she had abstained from sexual intercourse for several months – where there were inconsistencies in the accounts given by the various witnesses called at trial – where the appellant contended that the evidence of a lack of consent was insufficient to allow a jury to be satisfied beyond a reasonable doubt of his guilt – where the respondent argued that the evidence before the jury was capable of countering any inference that the complainant had consented – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant argued that evidence given by the complainant at trial relating to her capacity to consent was an inadmissible opinion – where no objection was taken to that evidence at trial – whether the complainant’s evidence was admissible

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

K Prskalo for the appellant
P J McCarthy for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA:  After a three day trial in the District Court in October 2012 the appellant was found guilty by a jury of rape.  The appellant has appealed against conviction on the ground that the verdict is unreasonable and cannot be supported by the evidence.  Under that ground of appeal the question for the Court is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[1]  In applying that test, the Court must make “an independent assessment of the evidence, both as to its sufficiency and its quality”.[2]

   [1]MFA v The Queen (2002) 213 CLR 606 at 614-615, adopting the test in M v The Queen (1994) 181 CLR 487 at 494-495.

   [2]SKA v The Queen (2011) 243 CLR 400 at [14].

1. The Crown case was that the appellant raped the complainant on 10 April 2009.  The complainant, who was aged 25 at the time of the alleged offence, gave evidence that in April 2009 she was living predominantly in New York.  She returned to the Gold Coast on about the day before 9 April 2009 to have surgery for endometriosis, polycystic ovarian cyst syndrome, and complications associated with those illnesses.  Having worked through the night in New York, she left work early in the morning, went straight to the airport, and flew to the Gold Coast.  The trip occupied at least 24 hours.  On 9 April 2009, the complainant had dinner with her family, including her sister, at a Coolangatta Hotel where the complainant’s sister worked.  The complainant gave evidence that she consumed alcohol at that hotel from around 4.30 pm until about midnight.  She left the hotel with her sister, her sister’s friend “Pete”, and one of Pete’s friends.  The complainant said that she was then pretty drunk.  They snuck into a resort to swim in a pool or spa after first having bought some alcohol.  The group was at the resort for less than an hour.  The complainant said that she drank a little bit of alcohol at the resort.  The complainant and her sister then went to their mother’s home to get changed before going to Pete’s apartment.  The complainant could not recall what time she arrived at the apartment.  She gave evidence that at that time she was coherent but still drunk.

1. In addition to the complainant and her sister, present at the apartment were Pete and his friend, Pete’s roommate, a girl, and the appellant.  The complainant did not know any of these people other than Pete.  The group, including the complainant, drank a couple of cocktails.  The complainant said that she had very minimal interaction with the appellant at this time.  She recalled saying that she was tired and lying down on a couch.  Everybody told her not to go to sleep and the appellant made a joke of trying to pour a glass of vodka and something into her mouth; everyone was laughing and the complainant played along with that humour.  Very shortly after that the complainant turned in.  She was jet-lagged, “definitely tipsy drunk” and “very, very tired”.  The complainant’s sister wanted the complainant to sleep in the room in which the complainant’s sister and Pete were to sleep.  She tried to make the complainant a bed on the floor from the couch cushions.  The complainant said that she did not want to sleep with them because there was an empty bed in the spare room next door.  The complainant recalled that she ended up sleeping in the spare room on the bed.  No-one else was in there.  The complainant recalled somebody trying to lie down next to her – she thought it was Pete’s friend – but somebody else said “[d]on’t do that” and the person went out, leaving the complainant alone.  The complainant recalled that the light was off.  She took her jeans and bra off and slept in her underwear and t-shirt with a blanket.  She had no recollection of any other person coming into the room until she awoke.

1. The first thing the complainant remembered after going to sleep was Pete’s roommate holding her arm, violently shaking her and pulling her off the bed.  The appellant was lying next to the complainant and he and Pete’s roommate were yelling at each other.  The complainant realised that she did not have any underwear on.  She jumped off the bed, pulled on her jeans as fast as she could, and ran to the room next door to wake her sister.  The complainant said to her sister and Pete that she thought she had just been raped.  The complainant’s sister left the room to speak to Pete’s roommate.  Pete remained in the room, pretending to be asleep.  The complainant gave evidence that she felt irritation of a kind which she had previously felt after she had sex.  She also gave evidence that she had not had sex for three months before this occasion because her medical problems made it uncomfortable.  The complainant stayed in the room until the police arrived.

1. In cross-examination, the complainant agreed that, whilst at the hotel in Coolangatta, she had a vodka drink when she arrived, a schooner of heavy beer over dinner, two to three glasses of white wine at dinner, and at least three more vodka drinks.  She agreed that she shared a couple of vodka drinks at the resort afterwards and was asked to leave that resort at about 1.30 am.  The complainant recalled telling police that when she arrived at Pete’s apartment she was “really very drunk”; she said that, in hindsight, she was also very jet-lagged.  The complainant maintained that she was coherent at that time, but drunk.  The complainant accepted that it could be possible that some degree of her memory was affected by the amount she had to drink that night, but she did not agree that it was possible that she had consented to sex; she said that “I was coherent enough to remember if I consented to sex.”  The complainant agreed that she drank more vodka drinks at the apartment and she agreed that it could have been vodka and orange that the appellant poured into her mouth; she drank only a mouthful of the vodka and orange.

1. The complainant did not remember seeing male work clothes on the floor of the spare bedroom which she went into to go sleep.  She remembered telling police that at that time she was “extremely drunk”, but repeated that she was coherent but drunk.  She could not remember who gave her the pillows and bedding.  She thought it was probably Pete’s roommate and not the appellant.  She recalled that it was not the appellant who lay down next to her as she was first lying on the bed.  She went to sleep very quickly and did not recall having sex with the appellant at all.  The complainant agreed that when she went to her sister for help in the morning and said that she thought she had been raped, it was her sister’s idea to call the police.  The complainant agreed that her sister might have spoken on her behalf to the police and explained what happened but she could not remember that.  When the police arrived the complainant was feeling pretty traumatised but she was not feeling drunk.  The complainant agreed that neither her polycystic ovarian cysts syndrome nor her endometriosis physically prohibited her from having sex.  She added that having sex was uncomfortable and probably messy at certain points.

1. The complainant’s sister gave evidence that on 9 April 2009 she had dinner with the complainant and their mother at the hotel where she worked.  She had finished work at about 6.00 pm, and her mother and her mother’s partner eventually left around about 9.00 pm, after which she and the complainant, and one or two of their friends, continued drinking until about 11.30 pm.  As they were leaving the hotel they ran into a friend of hers, Mr Peter McCarthy.  After buying some alcohol at a bottle shop next door they went into the resort where they drank a little bit of alcohol whilst in the spa pool area.  Another man who was a friend of Pete’s was also at the spa.  At about 1.00 am, the complainant’s sister drove the group to Mr McCarthy’s apartment, dropped him and his friend off there, and then drove to the family home where the complainant and her sister changed clothes.  They subsequently returned to Mr McCarthy’s apartment.  When they arrived, the people present were Mr McCarthy, “Alvey” (a man who lived with Pete), Alvey’s girlfriend “Jess”, and the appellant.  At the apartment they had a drink, listened to some music, and ate some food cooked by the appellant.  The complainant’s sister made the complainant a cocktail, which the complainant did not finish.  When the complainant’s sister decided to go to bed she noticed that the complainant was falling asleep on the couch.  The complainant’s sister, who was to sleep in Mr McCarthy’s room, made a bed up on the floor of that room and put the complainant to bed there.

1. The complainant’s sister gave evidence that the appellant subsequently came into Mr McCarthy’s room and suggested that the complainant sleep in the spare room.  The complainant’s sister said that she did not want the complainant to do that.  She referred to a man who had seemed interested in the complainant at the spa.  The complainant’s sister gave evidence that she said to the appellant that she did not know “the other guy out there and … he’d been interested in her …”.  The appellant replied that he would make sure that no-one went into the spare room and he would “keep the guy away from her …”.  The appellant then helped the complainant up from the floor and they walked out of the room.

1. The first thing the complainant’s sister recalled after going to sleep was being woken just as daylight was arriving by the complainant saying that she had been raped.  The complainant then had her pants on but had not zipped them up.  The complainant said that she had woken up to the appellant having sex with her and Alvey shaking her.  The complainant’s sister left the bedroom and saw Alvey standing outside the spare bedroom and the appellant standing inside it.  They were having a conversation.  The appellant was naked with a sheet wrapped around him.  The complainant’s sister saw that the complainant’s underpants were on the floor.  She then returned to Pete’s room.  The complainant was very shaken up, crying and very distressed.  The complainant’s sister called the police.  The complainant stayed in the bedroom until the police arrived.

1. In cross-examination the complainant’s sister agreed that she had a bit to drink on the night in question.  She did not agree that the complainant was drunk.  She agreed that she could not be sure how much the complainant had to drink during the night at Pete’s apartment.  She did not see any signs of intoxication until the complainant started falling asleep on the couch, and did not know if that was because the complainant was intoxicated or because she had been on a long-haul flight all day.  The complainant’s sister did not notice men’s work clothes on the floor in the spare room.  She agreed that it was her idea to call police.

1. Mr Peter McCarthy gave evidence that on 9 April 2009 he ran into the complainant and her sister at a Coolangatta hotel.  After going to a pool in a resort they went back to his unit where they had a couple of drinks.  Present at the unit was Ms Jess Pybus, Mr Alan Kelly (Mr McCarthy’s flatmate, know as “Alvey”), the appellant, and a man named “Joel” (Mr Joel Green).  When they finished drinking he (Mr McCarthy) went into his bedroom, fell asleep, and was woken up the next morning by police.  In cross-examination Mr McCarthy agreed that it had been intended that the appellant would sleep in the spare room.  He agreed that the complainant had a couple of drinks.  He noticed that the complainant was a little bit tired but he did not notice anything about her which made him think she was intoxicated.  When it was put to him that he saw the complainant become more intoxicated as the night went on, he agreed that they had “all had a few”.  He disagreed that the complainant was passing out from drinking too much.  Mr McCarthy recalled making a bed at the end of his bed for the complainant and that when they all went to bed the complainant was asleep.  He did not remember the complainant deciding to sleep in the spare room.  He said that he did not see the appellant after he (Mr McCarthy) woke up but he agreed that he could be mistaken about that.

1. Mr Alan Kelly gave evidence that he had been drinking on 9 April 2009.  He did not recall much of what had occurred and his evidence was of no real assistance in the resolution of this appeal.  Mr Joel Green gave evidence but he too indicated that he had little recollection of relevant events.  He agreed in cross-examination that everyone had become intoxicated to a certain degree throughout the night.  Ms Jessica Pybus gave evidence that she was in Mr Kelly’s unit when she was woken by police in the morning of 10 April 2009.  She recalled having started drinking the night before at about 8.30 pm and that she was quite intoxicated when she went to sleep at around 1.00 am.  She recalled two women being present but did not know them.  She did not see anyone pass out from drinking too much.

1. Senior Constable Williams gave evidence that at 5.45 am on 10 April 2009 he went to the unit and spoke with the complainant’s sister.  He saw the appellant asleep in the bedroom, with a sheet wrapped around him.  When SC Williams spoke to the complainant her sister spoke on the complainant’s behalf and the complainant nodded.  Detective Sergeant Anderson arranged for the complainant to be taken to the Coolangatta Police Station where he obtained a statement from her and her clothing was taken for forensic testing.  He returned to the unit at about 9.15 am and the appellant was asleep then.  The appellant agreed to accompany Anderson to the police station and to undergo a forensic examination.

1. Dr Lincoln examined the complainant at about 11.00 am on 10 April 2009.  She noticed three small (less than 5 mm) superficial split-type lacerations lying vertically on the skin just behind the vaginal opening, which were tender; those sorts of injuries are not uncommonly seen after sexual intercourse, consensual or non-consensual and would ordinarily heal within 24 or 48 hours.  She took labial, low vaginal, high vaginal and cervical swabs.  A forensic scientist, Ms Caunt, gave evidence that one spermatozoon was located on the high vaginal smear, no spermatozoa were located on the endocervical and low vaginal smears, but the swabs tested positive for the possible presence of seminal fluid.  No seminal fluid and no spermatozoa were detected on the vulval, perineal or perianal swabs.  The DNA profiles of the swabs either matched the complainant’s DNA profile or did not give any profile.

1. Dr Lincoln also gave evidence that she took a venous blood sample from the complainant at about 10.55 am on 10 April 2009.  A test for alcohol in the blood indicated that no alcohol was detected.  The laboratory routinely would not report any level less than .01 per cent, so that the complainant’s blood alcohol percentage might have been between zero and .01 per cent.  A urine sample was tested and it showed a level of alcohol which was too small for any useful interpretation.  Dr Lincoln expressed the opinion that, having regard to the usual rates of metabolising alcohol of between .01 and .03 per cent per hour, if the complainant’s blood alcohol was .01 per cent at 11.00 am she could have had anywhere between eight and 24 standard drinks if, as the complainant reported, she had stopped drinking at about 4.00 am that morning.  (I interpolate here that there was no evidence at the trial  that the complainant did not stop drinking until 4.00 am.)  In cross-examination Dr Lincoln agreed that subject to various assumptions including that the blood alcohol percentage peaked at 5.00 am (when the alleged offence may have occurred), her blood alcohol concentration at that time might have been as high as .18 per cent.  Dr Lincoln agreed that alcohol can affect a memory about an incident when a person was intoxicated, usually at quite severe intoxication levels, but that was unpredictable and varied from person to person.  Dr Lincoln agreed that a person who had experienced memory loss from a time when a person was intoxicated may nevertheless have been conscious at the time and, because of the memory loss, subsequently believed that they were unconscious.  Dr Lincoln gave evidence that the complainant said that she had not suffered, pain, discomfort or bleeding.

1. Dr Lincoln gave evidence that at midday on 10 April 2009 she examined the appellant at the police station.  She took wet and dry swabs of the shaft, glans and coronal sulcus of the penis.  Ms Caunt gave evidence that the DNA profiles obtained from the shaft wet swab, shaft dry swab, and glans indicated that there was DNA present from two people who had contributed DNA at different proportions.  Dr Lincoln took the wet swab of the glans with the foreskin of the appellant’s uncircumcised penis retracted; she expressed the opinion that material from an external source would not be found at that site unless the foreskin was fully retracted. From all three samples, the major DNA profile matched the DNA profile of the appellant and the minor DNA profile matched the same information in the complainant’s DNA profile.  The probability of the minor DNA profile occurring if the DNA came from someone other than the complainant was approximately one in 88,000 for the glans wet swab, and approximately one in 3.5 million for the shaft swabs.  In cross-examination Ms Caunt agreed that she could not determine the part of the body from which the minor DNA profile found on the appellant’s penis had been derived, she agreed that DNA could be transferred through an intermediate source, and she agreed that this could happen when a person touched an object, such as bed sheets, and a second person touched the same object.

1. The appellant did not give or call evidence.

Consideration

1. The appellant argued that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant had sexual intercourse with the complainant.  That submission should not be accepted.  It is unsurprising in the circumstances revealed by the evidence and in light of the delay between the alleged offence and the trial that there were some inconsistencies between the versions of the various witnesses.  The jury could be satisfied beyond reasonable doubt that the appellant had sexual intercourse with the complainant whilst she was asleep by a combination of circumstances proved by evidence which the jury could reasonably accept:

1.          The irritation felt by the complainant when she awoke being similar to what she had felt on other occasions when she had engaged in sexual intercourse.

2.          Lacerations of a kind commonly seen after intercourse being found in the skin just behind the complainant’s vaginal opening.

3.          A single spermatozoon being found in the complainant’s high vaginal swab.

4.          The presence of seminal fluid in the complainant’s endocervical and low vaginal swabs.

5.          The partial DNA profiles matching those of the complainant on swabs taken from two locations on the appellant’s penis.

6.          Dr Lincoln’s opinion that material from an external source would not be found where it was found on the appellant’s glans penis unless the foreskin of the appellant’s penis were fully retracted.

7.          The complainant having slept in the bed in the spare room in which the appellant had intended to sleep.

8.          The appellant having taken the complainant from Mr McCarthy’s room into the spare room to sleep the night.

9.          The appellant being found naked in the bed in the spare room covered only by a sheet when the appellant awoke in that bed early in the morning.

10.       The complainant’s underpants then being on the floor in that room when the complainant had her underpants on when she fell asleep.

11.       The appellant having told the complainant’s sister the night before that he would ensure that no one else entered the spare room.

1. Taken together, those circumstances were sufficiently cogent to allow the jury to find beyond reasonable doubt that the appellant had sexual intercourse with the complainant during the night; the jury could safely exclude any hypothesis that the complainant’s DNA was deposited on the appellant’s penis, either through a transfer of the complainant’s DNA to the sheets of the spare room bed and thence to the appellant’s penis, or in any way otherwise than by penetration of the complainant’s vagina by the appellant’s penis.

1. I would not accept the appellant’s argument that, if it was open to the jury to conclude that one of the men in the apartment had sexual intercourse with the complainant, the evidence did not justify exclusion of a hypothesis that it was the man to whom the complainant’s sister had referred as showing interest in the complainant earlier in the night at the resort.  The appellant relied also upon the complainant’s evidence that someone other than the appellant tried to lie down next to her.  It was submitted that the sexual intercourse could have occurred even whilst the appellant was asleep in the bed.  However there was reliable evidence that the appellant had sexual intercourse with the complainant and there was no evidence that any person other than the appellant had sexual intercourse with the complainant.  In particular, the combination of the circumstances I have numbered as 5 – 9 and 11, assessed in the context of the other circumstances, justified the jury in excluding any such hypothesis beyond reasonable doubt.

1. The appellant argued that, if it was open to the jury to conclude that the appellant had sexual intercourse with the complainant, the evidence in the Crown case that the complainant did not consent was insufficient to allow the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the charged offence.  The appellant argued that neither the medical evidence nor the complainant’s own evidence suggested that her blood alcohol concentration was such as to render her unconscious at the time of the alleged offence.  The Crown case was instead that the act of sexual penetration occurred whilst the complainant was asleep.  The appellant argued that there was a reasonable hypothesis that the complainant had consented to sexual intercourse whilst she was awake; after falling deeply asleep and because of the effects of partial intoxication, she had forgotten that she had consented.  The appellant relied upon Dr Lincoln’s evidence that a person who experienced memory loss because of intoxication may have been conscious at the relevant time but, because of the memory loss, may have come to believe that he or she had been unconscious.  It was submitted that such a scenario was just as likely as that of which the complainant gave evidence, of having been so deeply asleep as to be unaware of the sexual intercourse of which she later complained.

1. The omission of defence counsel to put to the complainant that she had consented to sexual intercourse may have been a consequence of the appellant’s instructions (referred to in the sentencing remarks) that he had no memory of the occasion (presumably because he was intoxicated).  Putting that omission aside, the evidence in the Crown case was capable of satisfying the demanding burden which lay upon the Crown to prove that the complainant did not consent to sexual intercourse with the appellant.  The clear effect of the complainant’s evidence was that she was deeply asleep until woken in the early morning.  In cross-examination the complainant did not agree that she might have consented to sex without remembering that she had done so.  She said that “I would remember – I was coherent enough to remember if I consented to sex.”  The appellant argued that this was inadmissible opinion.  No objection was taken to this evidence.  It was responsive to defence counsel’s questions about the degree to which the complainant’s memory was affected by the amount of alcohol she had consumed.  The evidence was admissible under the common law rule permitting the reception of non-expert evidence where it is very difficult for the witness to convey his or her perception about a condition or event without giving a rolled-up summary of impressions or inferences.  In Lithgow City Council v Jackson (2011) 244 CLR 352 at 370 [45], French CJ, Heydon and Bell JJ referred to examples of the application of this rule, including lay opinion evidence of sobriety.

1. There was a substantial body of evidence to the effect that the complainant, whilst very tired and to some extent drunk, was not incoherent and remained in control of her faculties.  If the jury accepted that evidence, as it was entitled to do, the expert evidence about the possible and variable effects of intoxication upon memory did not require the jury to harbour a doubt about the reliability of the complainant’s evidence that she did not consent to sexual intercourse and would not have forgotten had she done so.  Whether evidence of that kind is capable of satisfying the demanding standard of proof required for a conviction must depend, not only upon the particular content of that evidence and its quality, but also upon all of the relevant circumstances of each case.  In this case, the complainant’s evidence fell to be assessed in the context of a variety of relevant circumstances which the jury could find were proved by evidence which it accepted: the complainant had a medical condition which made sexual intercourse uncomfortable for her; for that reason she had abstained from sexual intercourse for some months; she had just returned to Australia for surgery for that medical condition; she was a complete stranger to the complainant before her brief interaction with him in the unit; when she went to bed she was exhausted as a result of the combination of the effects of alcohol, jet-lag, and insufficient sleep; although she went to sleep well after midnight, she awoke at first light; when she awoke, the appellant was naked in the bed with her and her underpants had been removed during the night; upon awakening, the complainant felt for the first time an irritation which resulted from the appellant having had sexual intercourse with her; the complainant then became distressed as a result of her appreciating that the appellant had sexual intercourse with her; and the complainant immediately complained of having been raped. (The trial judge directed the jury that the evidence of complaint could only be used in assessing the credibility of the complainant’s evidence.)  The jury evidently accepted the complainant as a reliable historian about the critical elements of her evidence, notwithstanding some inconsistencies amongst the accounts given by the witnesses.  Having regard to the particular circumstances revealed by the evidence in this case, that was reasonably open to the jury and it was therefore open to the jury to accept beyond reasonable doubt that the complainant had not consented.

1. Accordingly, the guilty verdict was not unreasonable or unsupported by the evidence.

Proposed order

1. The appeal against conviction should be dismissed.

1. GOTTERSON JA: I agree with the order proposed by Fraser JA and with the reasons given by his Honour.

1. DOUGLAS J: I have had the advantage of reading the reasons of Fraser JA with which I agree.

1. The issue in the appeal which concerned me in particular was the effect of the complainant’s evidence denying that she consented to sex on the basis that she was coherent enough to remember if she had consented.  Is that evidence sufficient in the circumstances, which included her evidence that she had drunk a significant quantity of alcohol and had fallen deeply asleep, to discharge the prosecution’s burden of proving that the appellant’s intercourse with her occurred without her consent?

1. Evidence of a person’s state of mind is as much a matter of fact as is her state of digestion.[3]  Lord Justice Bowen went on to say, however, that: “It is true that it is very difficult to prove what the state of a man’s mind at a particular time is, but if it can be ascertained it is as much a fact as anything else.”

   [3]Edgington v Fitzmaurice (1885) 29 Ch D 459, 483.

1. Evidence as to her state of mind, taking into account her state of sobriety, is admissible on the approach discussed in Lithgow City Council v Jackson.[4]  The examples given there by French CJ, Heydon and Bell JJ of the admissibility of non-expert opinion evidence were of testimony dealing with “age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state.”  Their Honours went on to say that a thorough search would uncover very many more, referring to the discussion in Wigmore on Evidence in Trials at Common Law.[5]  Commonly, however, such evidence would come from third parties assessing the matters referred to, one would hope, when they were sober themselves.  Experience shows, however, as in this case, that the sobriety of all witnesses to events like these cannot be guaranteed.

   [4]Lithgow City Council v Jackson (2011) 244 CLR 352, 370 at [45].

   [5]Wigmore on Evidence in Trials at Common Law, Chadbourn Revision (1978) vol 7 at §§1933-1978.

1. The discussion in Wigmore, at §1965 in particular, also speaks of the admissibility of evidence of the witness’s own intention and state of mind in the context of the general repudiation of the argument that “since a person’s own intention can be known only to himself, his statement of what it is or was cannot be safeguarded by the possibility of exposing its falsity, through the aid either of conflicting circumstances or of opposing witnesses; and that thus the influence of self-interest in falsifying is too dangerous, and that such testimony should consequently be forbidden.”[6]

   [6]See also Wigmore, fn 3, vol 3 at §581.

1. That rejected argument is one that goes to reliability of the evidence rather than its admissibility and is countered here by the availability of the evidence of the complainant’s drinking as something that the jury could assess in determining whether to accept that she did not consent to intercourse.  I agree, therefore, that her evidence as to her lack of consent was admissible.

1. The problem that concerned me was whether that evidence was sufficiently reliable, taking into account her state of sobriety and the possibility that she had consented but could not remember having done so, to discharge the prosecution’s burden of proof.  Where the opinion evidence from her was as to the extent of the effect of her own drinking on her state of mind, the problem of falsifying that evidence and of its reliability is highlighted.

1. I have come to the view, nonetheless, that her evidence of her lack of consent, in conjunction with the other evidence discussed by Fraser JA at [23] consistent with the likelihood that she would not have consented to intercourse, made it open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, paying full regard to their primary responsibility for determining guilt or innocence and to the fact that they had the benefit of having seen and heard the witnesses.[7]

   [7]See M v The Queen (1994) 181 CLR 487, 493 and MFA v The Queen (2002) 213 CLR 606, 614-615 at [25], 619-624 at [44]-[61].

1. Accordingly, I agree that the appeal against conviction should be dismissed.