R v MK

[2022] NSWDC 245

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v MK [2022] NSWDC 245

Hearing dates:

Tuesday 21 June 2022

Date of orders:

Tuesday 21 June 2022

Decision date:

21 June 2022

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

Section 292 consent directions not given – Good reason not demonstrated.

Catchwords:

CRIMINAL PROCEDURE — Trial — Directions to jury — Interlocutory application — “Consent Directions” pursuant s 292 Criminal Procedure Act 1986 (NSW) — None of the s292A-s292E directions given — No good reasons to give directions - Construction of s 292D

Legislation Cited:

Crimes Act 1900 (NSW) ss 61I, 61J
Criminal Procedure Act 1986 (NSW) ss 292, 292(2) 292A, 292B, 292C, 292D, 292E

Texts Cited:

Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (October 2002).

New South Wales Law Reform Commission, Consent in relation to sexual offences (Report No 148, September 2020).

Category:

Principal judgment

Parties:

Regina (Crown)
MK (Accused)

Representation:

Counsel:
N Keay for the Crown
S Corish for the Accused

Solicitors:
G Gaynor for the Crown
D Rideaux for the Accused

File Number(s):

2019/00174478

Publication restriction:

Suppression order in respect of identity of the accused.
Non-publication order in respect of identity of complainant.

JUDGMENT

1. HER HONOUR: The accused in this trial is charged with three counts of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW), and one count contrary to s 61I of the Crimes Act 1900. The provisions of s 292 of the Criminal Procedure Act 1986 (NSW) apply to trials for offences of this type as from 1 June 2022 and are as follows:

   Section 292 Directions in relation to consent

1. This Subdivision applies to a trial of a person for an offence, or attempt to commit an offence, against the Crimes Act 1900, section 61I, 61J, 61JA, 61KC, 61KD, 61KE or 61KF.

2. In a trial to which this Subdivision applies, the judge must give any 1 or more of the directions set out in sections 292A–292E (a “consent direction”) —

1. if there is a good reason to give the consent direction, or

2. if requested to give the consent direction by a party to the proceedings, unless there is a good reason not to give the direction.

3. A judge is not required to use a particular form of words in giving a consent direction.

4. A judge may, as the judge sees fit

1. give a consent direction at any time during a trial, and

2. give the same consent direction on more than 1 occasion during a trial.
    

2. The Crown in this trial flagged a request was likely at the end of the Crown case on Friday the 17 June. The issue was raised again yesterday, Monday 20 June, before addresses. The Crown initially indicated that ss 292B and 292D were relevant to this trial and at that stage appeared to be requesting that directions of that type be given to the jury. There was some discussion, perhaps something short of a formal argument on the topic, and it was agreed that at the very least, I needed to make a determination on this issue.
    

3. Today, the Crown clarified that it was not requesting any of the consent directions be given, and so it is not necessary for me to determine whether or not there is any good reason not to give one or other of those directions. However, the section purports to be mandatory, at least to the extent that one or more of the consent directions must be given if there is a good reason to do so.
    

4. In this trial, consent is not an issue, and that must surely be the end of any argument as to whether or not there is any good reason to give one of these consent directions. However, for more abundant caution, I set out my reasons for declining to give any of these consent directions in this trial.
    

5. Section 292 of the Criminal Procedure Act 1986 is within pt 5 div 1 sub-div 3 of the Act. The whole of Part 5 is directed to various special provisions relating to evidence and procedure in sexual assault proceedings, including trial proceedings, and directions to be considered and, were appropriate, given by judges in trials involving specific sexual assault offences. It is recently enacted and applies to proceedings for all relevant offences, no matter when charged or alleged to have been committed, from 1 June 2022.
    

6. The provisions of sub-div 3 in my view, except for one provision, would appear to be clearly in relation to additional directions which should be given to juries on the issue of whether or not the Crown has proved that any particular sexual activity has occurred without the complainant's consent. That would seem to be clear from the fact that the directions in ss 292A to 292E inclusive are defined in s 292(2) as “consent directions.”
    

7. Section 292A provides for a direction that deals with non-consensual sexual activity focusing on the different circumstances in which non-consensual sexual activity might occur.
    

8. Section 292B, in all its subsections, also relates to the issue of consent, with directions going to the issue of differing responses of individuals to non-consensual sexual activity.
    

9. Section 292C refers to circumstances in which a direction should be given, making it clear that lack of physical injury or the reality or threat of injury or violence does not necessarily mean that any sexual activity was not without consent.
    

10. Section 292E deals specifically with a direction on the issue of consent, namely whether or not the behaviour or appearance of a person should lead to an assumption that sexual activity was consensual.
     

11. All of these individual provisions of sub-div 3, in their own terms, apply to the issue of consent. In this trial none of the issues covered by ss 292A, B, C and E has been raised in submissions, and there is nothing in the evidence of the complainant that is likely to lead to the jury’s thinking that these issues are relevant for their consideration. For that reason alone, there is no good reason in this trial for giving any of those consent directions.
     

12. That leaves a consideration of s 292D, which is also within sub-div 3. It is, as I have said, defined as being one of the consent directions which potentially must be given if there is a good reason for doing so. On that basis alone, it seemed to me that the direction referred to by this section is meant to go to the issue of consent, not to be a direction at large. However, it is drafted in broader terms, notwithstanding that it is defined as a consent direction.

    Section 292D Responses to giving evidence

1. Direction—

1. trauma may affect people differently, which means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence, but others may not, and

2. the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.
    

13. The notes appearing in the JIRS Criminal Trial Courts Bench Book at [2-984] and headed “Suggested procedure when considering whether consent directions required”, indicate that whilst the other provisions of s 292 specifically relate to the actual issue of consent and the circumstances in which non-consensual sexual activity might occur, s 292D, “concerns misconceptions about a person’s response to giving evidence”. That note in the Bench Book seems to suggest that this section extends more broadly than to issues surrounding directions involving consent and lack of consent. It seems to me that that is not the case when this section is properly construed. That Bench Book note specifically refers to a recommendation of the Law Reform Commission Report 148, at chapter 8.111, as the basis for this section which itself specifically provides the following: “The recommended direction addresses the possible misconception that a person who experiences non-consensual sexual activity will display emotion or distress when recounting it.”
     

14. Section 292D is in identical terms to the Law Reform Commission recommendation. To the extent that there might be any confusion relating to the breadth of s 292D of the Criminal Procedure Act 1986, it seems to me that its definition as a consent direction, taken together with what must have been Parliament’s intention, based as it is entirely on the Law Reform Commission recommendation, means that this direction, if and when given, is limited to the issue of whether or not a particular sexual activity was non-consensual, and in particular, whether or not the way in which a person gives evidence about that activity is to be viewed in assessing the issue of consent. It is not a direction at large.
     

15. In this trial, there has been no issue raised that the complainant’s demeanour as a witness or presence or a lack of distress or emotion might be relevant to an assessment of whether or not the Crown has proved that she consented to the sexual activity because, as I have said, the issue of consent is not in dispute in this trial. The issue in this trial, fairly and squarely from the very beginning of the trial, has been whether or not the Crown can prove that the alleged sexual activity occurred at all and it is denied by the accused.
     

16. I indicate that I will not be giving any of these consent directions in this trial because I do not accept that there are good reasons for giving them, largely because in the way this trial has been conducted and on the basis of the evidence which has been called. It is both unnecessary and liable to both confuse the jury about unnecessary issues and deflect the jury’s attention away from the real issue in the trial, namely whether or not the Crown has proved that the events alleged occurred at all.
     

17. If the jury accepts the complainant’s evidence in this trial as the truth beyond reasonable doubt, then there can be no doubt, it seems to me, that each of the episodes of sexual intercourse were without her consent, and for that matter also, on the basis of the evidence of the complainant herself, that this lack of consent was known to the accused.
     

18. That having been said, it is appropriate in my view, to record that judges may need to give careful consideration in the future to the general directions given to juries, usually at the beginning of a trial, and then during the course of the final summing up, that they are entitled to take into account the demeanour of a witness when determining whether or not to accept their evidence as reliable.
     

19. In trials for offences which fall within s 292, it may be necessary to temper that general direction, even at the beginning of the trial, because s 292D would seem to require some caveat to be placed on such a direction. It may be necessary in an appropriate case for a jury to be advised that the general invocation to use their common sense and experience of the world when assessing the reliability of a witness, including assessing that on the basis of a witness's demeanour, may need to be more limited when considering an issue of whether or not the Crown has proved lack of consent.
     

20. It would seem to me to be a desirable course that both Crown and defence counsel in all trials for offences covered by s 292 deal with the issue of what, if any, consent directions might be sought, at the beginning of the trial before a jury is empanelled, and certainly well before any preliminary remarks, because a Judge in a relevant trial may well decide not to give a general direction about the jury's right to assess the overall reliability of a witness on the basis of demeanour if, indeed, at some later stage in the trial, that direction has to be tempered as a result of s 292D on the issue of consent alone.
     

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Amendments

06 July 2022 - (1) The content in paragraph 8 has been split and distributed into two further paragraphs, being paragraphs 9 and 10.

(2) The line “… issues covered by ss 292A, B, D and E” has been amended to now read “… issues covered by ss 292A, B, C and E”. Due to a formatting amendment, this line which was contained within paragraph 9, is now contained within paragraph 11.

Decision last updated: 06 July 2022