R v P, LB
[2008] SADC 6
•12 February 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, LB
Criminal Trial by Judge Alone
[2008] SADC 6
Reasons for the Verdict of His Honour Judge Nicholson
12 February 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT
Accused charged with one count of rape - verdict: not guilty - issues of consent and capacity to consent where complainant is intellectually disabled.
Criminal Law Consolidation Act 1935 s48; R v Murphy (1988) 52 SASR 156; R v Mustafa (2005) 91 SASR 62 at [56]-[57], referred to.
Reg v Beattie (1981) 26 SASR 481 ; R v Morgan [1970] VR 337 at 341-342; Reg v Richardson 20 June 1990, unreported, SCSA-CCA No 35 of 1990, applied.
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - PROOF, EVIDENCE AND PROCEDURE
Accused charged, in the alternative, with one count of unlawful sexual intercourse - verdict: not guilty - issues as to what the prosecution must prove where complainant is intellectually disabled.
Criminal Law Consolidation Act 1935 s49(6), referred to.
Reg v Richardson 20 June 1990, unreported, SCSA-CCA No 35 of 1990, applied.
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - BUGGERY AND INDECENT ASSAULT OR DEALING - CONSENT
Accused charged with one count of indecent assault - verdict: not guilty - issues of consent and capacity to consent where complainant is intellectually disabled.
Criminal Law Consolidation Act 1935 s56; R v Eastwood (1998) 114 A Crim R 448, referred to.
Reg v Beattie (1981) 26 SASR 481; R v Morgan [1970] VR 337 at 341-342; Reg v Richardson 20 June 1990, unreported, SCSA-CCA No 35 of 1990, considered.
R v P, LB
[2008] SADC 6Introduction
The accused, P, LB, was charged on an Information dated 2 April 2007 with three offences; rape, contrary to s48 of the Criminal Law Consolidation Act 1935 (“CLCA”), unlawful sexual intercourse, contrary to s49(6) of the CLCA and indecent assault, contrary to s56 of the CLCA. Notwithstanding that the accused faces three separate charges, the count of unlawful sexual intercourse is a pleaded alternative to the first count, that is, the rape charge.
It follows, that I must first consider the evidence relevant to and make a determination with respect to the charge of rape. A guilty verdict to the charge of rape would dispose of the second count of unlawful sexual intercourse. It is only in the event that I were to find the accused not guilty of the rape charge that I would go on and consider the evidence relevant to and make a determination with respect to the charge of unlawful sexual intercourse.[1]
[1] R v Murphy (1988) 52 SASR 186.
The third count, the charge of indecent assault, is not a pleaded alternative. It comprises a separate charge based on different alleged conduct by the accused. The accused’s guilt or innocence with respect to this charge will need to be determined in any event.
The accused pleaded not guilty to all three charges. He made a late election pursuant to s7 of the Juries Act 1927 to be tried by judge alone. The trial was listed to start at the Port Augusta Circuit Sittings on Monday, 26 November 2007. On 8 November 2007, whilst the circuit was in progress, the accused, through his solicitors, filed an application for the rules ordinarily applicable as to the timing of any such election to be dispensed with in reliance on rule 16 of the Juries Rules 1996. On Monday, 23 November 2007 an affidavit, sworn by the accused that day, was filed with the court by facsimile transmission. I heard the application on the morning of the day of trial. There was no opposition from the Director of Public Prosecutions either to the making of the application or to the late election.
Upon hearing from counsel for the accused and counsel for the Director of Public Prosecutions I was satisfied that there was a proper basis to waive compliance with the prescribed time limits. In the circumstances, I formed the view that it would be unjust not to grant the application. I do not set out the reasons for that finding here but they are evident from the transcript of the submissions put to me at the time of hearing the application. Counsel for the accused filed in court a Certificate pursuant to rule 10 of the Juries Rules and I was satisfied that the accused had been properly advised of his rights prior to making the election. Accordingly, I ordered that the trial proceed by judge alone.
The accused also filed an application pursuant to rule 9 of the District Court (Criminal and Miscellaneous) Rules 1992. By this application the accused sought orders excluding from the evidence proposed to be led by the Director, certain matters referred to in the declaration of the proposed prosecution witness, V. During the course of the trial and prior to V giving her evidence I made a ruling excluding certain parts of V’s proposed testimony. In the circumstances I do not propose to provide my reasons for this ruling in this judgment but can do so in due course if it becomes necessary.
The charges
The accused was charged on the Information with the following offences.
First Count
Statement of Offence
Rape (s48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
P, LB on the 28th day of September 2006 at X, had vaginal sexual intercourse with K, without her consent.
Second Count
Statement of Offence
Unlawful Sexual Intercourse (s49(6) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
P, LB on the 28th day of September 2006 at X, had unlawful sexual intercourse with K.
Third Count
Statement of Offence
Indecent Assault (s56 of the Criminal Law Consolidation Act, 1935).
Particulars of the Offence
P, LB on the 28th day of September 2006 at X, indecently assaulted K.
Legal considerations and general directions
Evidence was adduced by the prosecution with respect to each of these three charges. However, there also was evidence, of both a specific and more general nature, of the accused engaging in acts, arguably of an indecent nature, with the complainant, on occasions prior to the alleged charged offending conduct. This evidence was led by the prosecution by way of background and explanation of the relationship that existed between the accused and the complainant. It was not led by the prosecution as propensity evidence and cannot be used for that purpose.
On the prosecution’s application with no opposition from the accused, I permitted, pursuant to s13 of the Evidence Act 1929, the complainant to give her evidence behind a one-way screen so that she could not see the accused. The accused, both counsel and I could see the complainant. She also had the benefit of a court companion throughout most of her evidence. I remind myself that I am not to draw from the fact of these arrangements any inference adverse to the accused nor am I to allow these arrangements to influence the weight, if any, that I give to the evidence of the complainant.
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for the court having conducted a trial by judge alone to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless record that I have reminded myself of the following.
(i)An accused person is presumed to be innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
(iv)Each of the three charges concerns a separate offence and I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
(v)The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
(vi)Notwithstanding the matter raised in (v) above, if I were not to be satisfied beyond reasonable doubt that the complainant was truthful and reliable with respect to one or more of the charges on the Information, I must then consider whether I can be satisfied as to the guilt of the accused on any remaining charge or charges. That is, I must remember that if I am not satisfied as to the credibility and reliability of the complainant, then that lack of satisfaction will be a factor relevant to my consideration of the other charges to the extent to which that complainant’s evidence is critical to those other charges.
(vii)I have reminded myself of the normal directions given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. I do specifically note that in this case the accused elected not to give evidence in this court; he remained silent. I remind myself of the following matters. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. The recurrent theme I must always bear in mind is that it is for the prosecution to prove its case beyond reasonable doubt.
The accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
(viii)Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge, then it necessarily means that the prosecution has failed.
I turn now to set out the basic elements of each of the offences charged, each of which elements the prosecution must prove beyond reasonable doubt.
Rape
The offence of rape is committed when a person has sexual intercourse with another person, without the consent of that other person, knowing that the other person does not consent, or being recklessly indifferent as to whether the other person consents, and this is so whether or not that other person offers physical resistance. The prosecution must prove three elements.
First, there must be an intentional act of sexual intercourse. Relevant to the present case, sexual intercourse includes the penetration of the female vagina by the male penis.
The second element requires the prosecution to prove that sexual intercourse was performed without the female’s consent. Consent may be indicated by words or conduct or both. There is a distinction between submitting to intercourse and consenting to it. Mere submission is not of itself consent, although it may be some evidence of consent. However, if a female submits to intercourse as a result of force or threats, or simply because resistance appears to be dangerous or futile, that is not consent. Submission through force is not consent, and submission through fear is not consent. Consent must be the free and willing participation by the female in the act of sexual intercourse.
The third element requires the prosecution to prove that the accused either knew that the female was not consenting or was recklessly indifferent as to whether she was consenting. An accused would be recklessly indifferent if, realising that the female might not be consenting, he proceeded to have sexual intercourse with her irrespective of whether she was consenting or not.
Unlawful sexual intercourse (s49(6) of the CLCA)
Section 49(6) of the CLCA provides, insofar as is relevant, as follows.
A person who, knowing that another is by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with that other person is guilty of an offence.
There are three elements to this offence. The first element is that the accused had sexual intercourse with the complainant during the period charged. The second element is that the complainant was at the time “by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse”. The third element is that the accused knew, at the time of engaging in the sexual intercourse, that the complainant was “by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse”.
Consent on the part of the complainant is no defence to a charge under s49(6) and is irrelevant (see s49(7)). The charge is proved if the three elements identified above are proved regardless of whether or not the complainant consented because, in this case, the law merely concerns itself with the act of sexual intercourse no matter how it came about, provided it occurred in the circumstances as described in the second and third elements noted above.
Indecent assault
An indecent assault is an assault accompanied by or committed in circumstances of indecency. The offence of indecent assault consists of two essential elements.
The first element is assault. An assault is an intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury.
The application of force or violence must be intentional; a purely unintended accidental touching would not be sufficient.
The application of force must be unlawful; that is, without lawful justification or excuse. It is not always unlawful to use force. In certain circumstances, the law recognises that it is perfectly proper to do so. For example, if consent is given to the use of force in the context of a lawful activity, such as a game of football, that use of force is not without lawful justification or excuse.
The second element is that the assault must be accompanied by, or occur in, circumstances of indecency. The word "indecency" is a word which is well-known. Obviously, there are many kinds of conduct about which people might differ as to whether or not it is indecent. Some things might be a matter of taste; but, putting those matters aside, there are other kinds of conduct which, by any reasonable, contemporary standards, can only be described as indecent. It is a matter for me as the trier of fact in this case to determine, by reference to those standards, whether I consider the particularised conduct, if proved, to have occurred in circumstances of indecency.
The prosecution case – in essence
The matters set out in the following subparagraphs are not in dispute.
(i)The complainant had just turned 26 at the time of the trial and was 24 at the time of the alleged offending. She has an intellectual disability.
(ii)At the time of the alleged offending, the complainant lived in a full-time residential care facility called AH in the regional city of X. AH comprises the residential component of a program designed to care, on a 24 hour basis, for persons who are intellectually disabled.
(iii)During the working week, the complainant worked at a nearby farm which provided a sheltered employment service. The complainant, as at the time of the alleged offending, worked on the cleaning gang and was engaged each day in house cleaning, car cleaning and work at the farm.
(iv)At AH the complainant and three other residents lived in the house shown in the photographs in exhibit P1. They each had separate bedrooms but shared communal bathroom, lounge and kitchen facilities.
(v)A night time carer was rostered each night to look after the occupants. The accused was employed at AH and from time to time was rostered to work nights. The carer on duty at night stayed at AH throughout the whole night.
(vi)The events the subject of the three charges in this matter occurred during the night of 27 September 2006 either shortly before or shortly after midnight.
(vii)On that occasion the accused came into the complainant’s room and fondled her breasts (which is the subject of count 3). Shortly after that he had sexual intercourse with the complainant by penetrating her vagina with his penis (being the incident the subject of counts 1 and 2). This conduct was admitted by the accused in his record of interview (exhibit P4). The relevant question and answer is recorded at number 13 on the transcript of the record of interview (exhibit P5).
(viii)The accused was aware that the complainant had a mental or intellectual disability. He gave the following answers to the police in his record of interview as transcribed in exhibit P5[2]:
[2] See also the answers to transcribed questions Q40, Q41 and Q42.
Q17 … and [the complainant] has a disability?
A Yep.
Q18 And what is her disability?
AAh, she’s a, mentally, um, not sure if it’s, she’s just a slow, like as a slow learner, or um, I can’t think what um, she is not as mentally um, um, oh it’s hard to put into words, what,
Q19She is 24, would you say,
AShe’s not, she hasn’t got a mind of a 24 year old.
Q20What would you say her mind is of? What age would you relate to her as?
AProbably a teenager.
Q21Teenage?
A16?
(ix)On a number of occasions prior to 27 September 2006 the accused had massaged cream on the complainant’s breasts. This type of conduct started with the accused providing the complainant with a shoulder massage; it then progressed to applying cream to and massaging her breasts. These activities occurred from time to time during an evening shift when there would be no other supervision available. In her evidence, the complainant said that this conduct occurred on five separate occasions. However, it is plain from the record of interview with the accused that this earlier behaviour of massaging her breasts occurred on a somewhat greater number of occasions.
As far as the alternative counts of rape and unlawful sexual intercourse are concerned, there is no dispute that penetration of the complainant’s vagina by the accused’s penis occurred. Accordingly, the issue of guilt or innocence of the rape charge will turn on the issue, which I put compendiously for the present, of consent. As far as the charge of unlawful sexual intercourse is concerned the issue of guilt or innocence will turn on whether or not the complainant lacked the requisite understanding and, if so, whether or not the accused knew of this.
As far as the charge of indecent assault is concerned there is no dispute that the accused fondled the complainant’s breasts shortly prior to the act of penetration. However, it is necessary that I make a finding as to exactly what occurred in this respect. I have already referred to the accused’s admission in his record of interview that he “fondled her breasts”. The complainant spoke more generally. Later in this judgment I make some observations about the complainant and her evidence. In general I accept her evidence as to what the accused actually did on the night, particularly insofar as it is corroborated by the accused’s admission.
In her evidence-in-chief the complainant said that “he’d take my top off” and that when he had taken her top off “he was touching me” (T37-38). At the time of this last answer the complainant indicated, by motioning with her hand, that the accused would brush down or stroke the front of her chest. After giving this evidence-in-chief, the complainant immediately went on and gave her description of the act of penetration which occurred on the night of 27 September. However, it is not clear from the whole of this passage of her evidence whether the complainant, in describing the touching of her breasts, was describing the actual incident said to have occurred that night prior to the penetration or whether she was describing in general terms the type of conduct that she said the accused would engage in from time to time. On my reading of the evidence I think the latter is more likely. On a later occasion in her evidence-in-chief the complainant further described the previous (uncharged) occasions when the accused would touch her breasts (T49-50). Again the witness did so by indicating with her hand what she said the accused did. It was agreed, expressly by defence counsel and tacitly by the prosecution counsel, that in so doing the witness indicated with her right hand a gentle touching and slight clutching of her right breast.
In cross-examination the circumstances of the accused touching the complainant’s breasts on the night in question were put to the complainant more directly. The complainant agreed with the cross-examiner that the accused asked her if she wanted a massage, to which she replied “That would be nice”, following which “P massaged [her] boobs” (T77).
As I have indicated, I am conscious that the evidence going to the earlier occasions on which the accused is said to have massaged the complainant’s breasts has been led solely to explain the nature of the developing relationship between the accused and the complainant. In order to determine whether or not an act of indecent assault occurred on the night of 27 September 2006, I must focus on the evidence of the events which occurred on that night. On the basis of both the complainant’s evidence, particularly in cross-examination, and the accused’s admission on this topic I do find, beyond reasonable doubt, that the accused massaged or fondled in a sexual way, the breasts of the complainant during the night of 27 September 2006. Whilst early in the “relationship” the rubbing of cream beneath the breasts where the bra had been chafing might have been seen to be therapeutic, I am satisfied that over time the conduct between the two became more than this and that, as I have found, the massaging of the breasts on the night of 27 September was of a sexual, not therapeutic, nature.
It follows that insofar as the count of indecent assault is concerned I am satisfied beyond reasonable doubt that there was an intentional application of force which occurred in circumstances of indecency. That is, and save for the issue of consent which I will come to, the fondling of a woman’s breasts in the absence of consent is conduct which by reasonable contemporary standards is to be described as indecent. However, before the first element of this offence can be established (an assault) it must be shown that the intentional application of force in question was without lawful justification or excuse. A proper and valid consent by the woman in question to having her breasts fondled will render the activity not unlawful. As with count 1 the live issue as to whether or not the count of indecent assault has been made out is whether or not the complainant validly consented to the accused’s conduct. I will come back to this issue.
The prosecution maintains that the act of sexual intercourse which occurred on the night of 27 September 2006 occurred without the consent of the complainant or if there was an apparent consent, in circumstances where that apparent consent was not valid because the complainant, by virtue of her intellectual disability, was incapable of giving such consent. The prosecution asserts that the accused either knew or was recklessly indifferent to the lack of consent or knew or was recklessly indifferent to the fact that the complainant was incapable of giving a valid consent. It is on this basis that the prosecution has maintained and pursued the count of rape.
In the alternative, the prosecution maintains that, irrespective of any valid consent that may have been given, the complainant was a person who, to the knowledge of the accused was, by reason of her intellectual disability, unable to understand the nature or consequences of sexual intercourse, in which case the offence of unlawful sexual intercourse (s49(6)) will be made out.
As far as the third count, indecent assault, is concerned, the prosecution maintains that the complainant did not consent to the fondling of her breasts on the night in question, or in the alternative, if she did so consent, she was by reason of her intellectual disability, incapable of giving a valid consent to this conduct.
The evidence of the complainant
My acceptance of the complainant’s evidence-in-chief and the drawing by me of appropriate inferences as to the complainant’s intellectual capacity and lack of knowledge and understanding of sexual matters, beyond reasonable doubt, are essential to the prosecution case on the subjective elements relevant to each charge.
Both parties agreed that the complainant was intellectually disabled. After hearing her evidence and observing her in the witness box over a reasonably long period of time, I formed the conclusion that she was significantly so. At the outset I took the view that an inquiry pursuant to s9 of the Evidence Act 1929 was warranted. I raised this with counsel prior to the complainant giving evidence and both counsel agreed that it was appropriate that I undertake such an inquiry (T23-26). Section 9 of the Evidence Act provides:
9(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that –
(a) the judge –
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)tells the person that it is important to tell the truth; and
(b)the person indicates that he or she will tell the truth.
(3)In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4)If unsworn evidence is given under this section in a trial by jury, the judge
(a) must explain to the jury the reason the evidence is unsworn; and
(b)may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5)(inapplicable)
In accordance with the requirements of s9, I questioned the complainant (T27-31). At the conclusion of that exercise I made a ruling that I was satisfied that the complainant may not have a sufficient understanding necessary to allow her to give sworn evidence but I was satisfied that otherwise the requirements of ss (2) were made out. I, accordingly, ruled that I would hear the complainant’s evidence unsworn. In this respect and notwithstanding that there is no need for a formal direction to be given in the case of trial by judge alone, I do note the admonition in ss(4)(b) as to the need for caution in determining whether or not to accept the evidence of the complainant and the weight to be given to it.
My reasons for making the above ruling are as follows. After questioning the complainant and having regard to my overall impression of her in watching and hearing her give her answers, I formed the view that:
(i)She had great difficulty in processing anything but the simplest of concepts verbally put to her and in dealing with any question that required her to formulate an answer more complex than one involving a single word or a very simple phrase and that her intellectual disabilities were significant.
(ii)Nevertheless, she did understand the basic difference between what is true and untrue and between telling the truth and telling a lie (T27-28, 29.17).
(iii)She did understand the importance of telling the truth at all times (T28-29) and expressed a willingness or desire to be truthful.
(iv)She had insufficient understanding of the significance of an oath or affirmation. I make this finding notwithstanding her answers as recorded in the transcript at the bottom of page 29 and the top of page 30. Whilst I did not receive evidence on how this came about, she had signed the Sheriff Officer’s witness form, prior to attending court, indicating that she wished to make an affirmation, whereas in answer to my questioning (T29-30) she indicated a desire to use the bible and to promise to God that she would tell the truth.
Ultimately, I formed the view that whilst the complainant had a very simple understanding of the meaning of truth and lies, she had an adequate understanding. Indeed, it seemed to me that telling the truth, at least insofar as she understood or believed the truth to be, came naturally to her; she was completely without guile. I formed the impression that she was of the belief that telling the truth was always important.
I stressed to the complainant the importance of telling the truth in court (T30-31.2) and in my view she understood and accepted that.
After hearing the complainant’s evidence in full, albeit on an unsworn basis, I remained persuaded that she understood the difference between what is true and what is false and that at all times in her evidence she attempted, to the best of her ability, to tell the truth. That is not to say, of course, that I accept all of her evidence as being completely reliable.
There are some aspects of the complainant’s evidence that I need to make specific reference to. As I have indicated, her facility with language was quite poor in that, at least insofar as answering questions from each counsel was concerned, she appeared only able to compose answers of single words or very simple phrases. She was not, during examination in chief or cross-examination, put in a position where she was able to volunteer an extended narrative. I do not know, but I doubt that she would have been able to. In addition, her enunciation and pronunciation were poor. Often it was very difficult to understand what she was saying. Nevertheless, counsel for both the Director and for the defence were careful and clear in the way they phrased their questions and patient in obtaining the complainant’s answers. The complainant also was patient when asked on a number of occasions to repeat her answer two and sometimes three times. In addition, the complainant had a practised facility with gestures which accompanied and explained a number of her answers. For example, on one occasion she was asked what time she went to bed and she said “half past” and at the same time held up the 10 fingers of her two hands. Ultimately, I was satisfied that I was able to hear and understand all of her evidence and I am satisfied that the transcript, in the main, accurately records the words she uttered.
A difficulty with witnesses of this type, and in my view the complainant was no exception, is that they can easily be suggestible and can have a great desire to please or accommodate the questioner. That is not to say that the complainant was not at all times attempting to tell the truth as she understood it. Of course, it is not possible to identify with certainty each and every occasion when the complainant’s evidence was unreliable. However, an obvious inconsistency in the complainant’s evidence occurred with respect to the topic of whether or not she consented to having sexual intercourse with the accused on the night of 27 September. I come to this evidence later in this judgment, but it does provide a stark example of the fact that the complainant, to use the words of White J[3], “was often putty in the hands of a friendly cross-examiner, and she often gave answers to please …”.
[3] Reg v Beattie (1981) 26 SASR 481 at 491.
The Count of Rape – Issues of Consent
Where an accused has been charged with rape, and leaving aside any question of capacity to consent, the prosecution must prove beyond reasonable doubt that the complainant did not consent to the sexual intercourse in question.
Throughout her evidence the complainant referred to the accused’s penis as his “doodle”. In examination in chief she told the court that on the night in question the accused put his “doodle” in her “fanny” (T38). She said that this had never happened to her before this night (T48). She said that when the “doodle” went in “it hurt” and that she said “stop”. At the same time she put her hand up to his chest (T39). According to the complainant, when she said “stop” he said that he would stop in five minutes at which time she said “no” whilst making an indication to the court (T40.10). The nature of the indication is not recorded in the transcript. Nevertheless, my clear recollection of her evidence at this point was to the effect that she was expressing her refusal to proceed with the penetration and a desire for it to stop. At some point after that the complainant said “he got out” at which time she went to bed. Later on, still in examination in chief, the complainant said that she did not want the “doodle” in her “fanny” and repeated that “it hurt a lot” (T48, T49). It is this evidence that the prosecution relies upon to sustain the element of lack of consent, in fact.
The prosecution also adduced evidence from the witness V. She was a project officer, at the relevant time, with the sheltered employment service that engaged the complainant’s services during the working day. V had regular contact, on a daily basis, with the complainant. K spoke to V at 8.45am on the morning after she and the accused had sexual intercourse. K told V that she had been “raped”. When asked to explain herself, K with words and hand gestures, explained to V that the accused had penetrated her vagina with his “dick” (T108-110). Later on in this judgment I refer to other evidence of the complainant which suggests that it is likely that the complainant’s understanding of the word “rape” is that it means no more than the act of penile vaginal sexual intercourse. The complainant also told V that she had told the accused to go away and had tried to kick her legs but the accused did not listen and that after she kicked her legs he went inside her (T110). V said that, during this conversation with the complainant, K “wasn’t herself” and was constantly swivelling in the swivel chair in which she was sitting and not making eye contact. However, V added that K does not make a lot of eye contact as a general rule. V also said that K was quite fidgety with her hands.
The evidence of V was adduced as evidence of recent complaint. I was satisfied that, in all the circumstances, the evidence satisfied the relevant criteria for admissibility as evidence of recent complaint.[4] Of course, such evidence is admissible not to prove the truth of the contents of the complaint but only in support of the complainant’s testimony by way of showing, to the extent that it is capable of doing so, consistency with that testimony. The evidence of V in this respect is available to assist me in determining the truthfulness and reliability of the complainant’s evidence on this topic. At face value, it does tend to support the reliability of the account given by the complainant in her evidence-in-chief, as briefly summarised above. However, I will return to this evidence of complaint after I have dealt with the complainant’s cross-examination on this topic.
[4] See, for example, R v Mustafa (2005) 91 SASR 62 at [56]-[57] per Besanko J with whom White J agreed.
In cross-examination the complainant agreed with the cross-examiner’s account of that evening, as put to her, which account was in quite different terms from that given by her in examination in chief. She gave the following evidence (at T75-79):
QI want to ask you some questions about the time that P put his doodle in your fanny.
AYeah.
QDo you remember that time.
AYeah.
QThat was the time that it hurt you, didn’t it.
AYeah.
QBefore P put his doodle in your fanny –
AYeah.
Q– that night did you ask him to see his doodle.
ANo.
QDid you ask him to put his doodle down there.
ANo.
QAre you sure about that.
AYeah.
QDidn’t you ask P to put his doodle down there and P said ‘No’.
ANo.
QP asked you, didn’t he –
AYeah.
Q– just wait until I finish the question; okay. Do you remember P saying to you ‘Why do you want to see my doodle?’, did he say that.
AYeah.
QSorry.
AYeah.
QDid he say ‘Why do you want to see my willy?’.
AYeah.
QDid you say to him that you wanted to see his willy because you liked P.
AYeah.
QP then went to his office to go to bed.
AYeah.
QAnd you went to his office, didn’t you.
AYeah.
QAnd you asked him again to put his doodle, his willy, down there, didn’t you.
AYeah.
QAt that time P was taking off his clothes to go to bed.
AYeah.
QDid he say to you then that he would come to your bedroom in five minutes.
AYeah.
. . . .
QWhen P came into your room at that time –
AYeah.
Q– that is the time that you switched on the little lamp.
AYeah.
QHe asked you, didn’t he –
AYeah.
Q– if you wanted a massage.
AYeah.
QAnd you said ‘That would be nice’.
AYeah.
QThen P massaged your boobs.
AYeah.
QP asked you if you wanted him to touch you down there.
AYeah.
QYou said ‘That would be nice’.
AYeah.
Q‘Down there’ is where your fanny is, isn’t it.
AYeah.
QP then asked you if you wanted him to put his willy down there.
AYeah.
QYou said ‘Yes’.
AYeah.
QAnd you took off your PJ’s –
AYeah.
Q– and your knickers.
AYeah.
QAnd P was sitting on your bed.
AYeah.
QIs that right.
AYeah.
QP then got on top of you, didn’t he.
AYeah.
QAnd P said to you ‘I’m going to put my willy in here’.
AYeah.
QAnd then P put his willy in your fanny.
AYeah.
QAnd it hurt, didn’t it.
AYeah.
QIt hurt a lot.
AYeah.
QIs that right.
AYeah.
QYou said ‘It hurts a lot’.
AYeah.
QDidn’t you.
AYeah.
QAnd P took his willy out of your fanny.
AYeah.
QBut he stayed on top of you, didn’t he.
AYeah.
QThen P asked you if you were all right.
AYeah.
QYou said ‘It hurts – ’.
AYeah.
Q‘ – but I’m all right’.
AYeah.
QAnd then after a while –
AYeah.
Q– P put his willy in your fanny again.
AYeah.
QAnd he did that very slowly, didn’t he.
AYeah.
QK –
A– yeah.
Q– this is a very important question now.
AYeah.
QYou didn’t push him away, did you.
ANo.
QWhen P hurt you –
AYeah.
Q– when he put his willy in your fanny were you scared.
AYeah.
The defence case, as is evident from this passage of cross-examination, is that the accused asked the complainant if she wanted him to put his penis in her vagina, to which she answered “Yes”, that when he did so she said that it hurt and so the accused took his penis out of her vagina but stayed on top of her, that the accused then asked if she was alright, to which she answered “It hurts – but I’m alright” and then after a while the accused very slowly put his penis back in her vagina. At that point the complainant did not push him away. Harking back to the evidence of V, it can be seen that what the complainant told V is not necessarily inconsistent with the first part of the process by which the accused completed the act of sexual intercourse, on the basis of the defence case. In other words, on the defence case, when the complainant withdrew her consent and kicked her legs or, as the complainant indicated in chief, said “stop” and motioned the accused away the accused desisted from the act of intercourse and only persisted with intercourse when the complainant’s consent had been restored.
It is noteworthy that virtually all of the complainant’s answers throughout the cross-examination set out above were the monosyllabic “yeah”; in each case, in effect, assenting to the proposition put to her by the cross-examiner. Such was the nature of the closed, leading questions asked, on this occasion and generally throughout the cross-examination. I make no criticism of defence counsel in this respect. It is a form of questioning ordinarily acceptable, indeed aspired to, during cross-examination. Furthermore, I am not persuaded that defence counsel could have gone about the matter any other way given the quite evident difficulties the complainant had both with language and understanding as I have already discussed. It is unlikely that open or non-leading questions would have allowed counsel adequately to put the accused’s case to the complainant or test the reliability of her evidence-in-chief in terms of her recollection and understanding of what took place on the critical night.
There is no doubt that the cross-examiner had a considerable advantage in the situation. Nevertheless, the evidence in cross-examination, as set out above, does have a measure of credibility to it, given the nature of the relationship between the complainant and the accused as it had developed prior to that night. Furthermore, it should not be ignored that the complainant, a woman of 24, is likely to have had sexual desires much as do most 24 year old women.
As I have said, I had an opportunity to observe and assess the complainant whilst she was giving her evidence. It is true that when she was first asked in cross-examination “Did you ask him to put his doodle down there” she answered “No”. However, I am not able, categorically, to reject her evidence when further cross-examined on this topic on the basis that she was manoeuvred into these concessions by the cross-examiner and that she simply wished to agree and to please. I have not formed a concluded view on the issue of whether the complainant, in fact, consented to the act of sexual intercourse. However, on the state of the evidence put before me on this topic, I find it to be a reasonable possibility that she did so consent.
It follows that I am not persuaded beyond reasonable doubt that the act of sexual intercourse occurred without the complainant’s consent. That the state of the evidence, following the cross-examination of the complainant on this topic, would lead me to such a finding was virtually conceded during the prosecution address (T153).
Given this finding, the question of whether or not the accused knew that the complainant was not consenting or was recklessly indifferent to this possibility does not arise.
The next question in this context is whether or not the complainant had the capacity to consent to the sexual intercourse which occurred on that night. An intellectually disabled person’s understanding of the nature of the act of sexual intercourse, in question, has a bearing on the issue of consent on a charge of rape.[5]
[5] Reg v Beattie (1981) 26 SASR 481 at 493 per King CJ with whose reasons Sangster and Legoe JJ agreed.
White J in Reg v Beattie[6], at first instance, discussed the requirements for the offence of rape in circumstances where a complainant was intellectually disabled. His Honour concluded:[7]
[6] (1981) 26 SASR 481.
[7] At 488.
In order to prove rape, something more must be shown by the prosecution than the facts of connection and mental deficiency of the [complainant]. [The complainant’s] lack of consent and unwillingness and [the accused’s] knowledge thereof or recklessness about it must also be proved.
His Honour went on to consider the Victorian Full Court decision in R v Morgan[8] where the issue before the court was whether the prosecution had proved, in the context of a charge of rape, that the intellectually disabled complainant had no capacity to consent. As White J observed, it was necessary for the prosecution to go this far because there was no hint of force or threat on the facts and there was no additional evidence going to consent beyond the fact of sexual connection and a supposed lack of capacity. White J appeared to endorse the following statement of the law propounded by the Victorian Full Court[9]:
It appears to us to follow from these statements of authority that, where capacity to consent is in issue, in order to establish that a girl does not have that capacity – and there is accordingly no consent – it must be proved that she has not sufficient knowledge or understanding to comprehend
(a)that what is proposed to be done is the physical fact of penetration of her body by the male organ, or if that is not proved
(b)that the act of penetration proposed is one of sexual connection as distinct from an act of a totally different character.
The crown may prove both (a) and (b), but if it fails to satisfy the burden as to (a), it may still establish “incapacity” to consent by proving she had not sufficient knowledge or understanding to comprehend (b).
Equally so we are of the opinion that capacity to consent does not involve, as a matter of law, knowledge or understanding of any of the ingredients referred to as “rudimentary concepts” by the learned trial judge. [The understanding of (a) and/or (b)] need not, of course, be a complete or sophisticated one. It is enough that she has sufficient “rudimentary knowledge” of what the act comprises and of its character to enable her to decide whether to give or withhold consent.
[8] [1970] VR 337.
[9] At 341-342, per Winnecke CJ delivering the judgment of the court (Winnecke CJ, Little and Starke JJ).
In Reg v Richardson[10] King CJ, in the context of his consideration of a charge under s49(6) of the CLCA[11] and when considering the phrase “so mentally deficient as not to understand the nature or consequences of the act [of penile vaginal sexual intercourse]” said this:
An understanding of the nature of an act of sexual intercourse is, I apprehend, an understanding of the physical actions constituting the act together with an appreciation that the act is of a sexual character and not of a character of a different kind such as a medical or hygienic procedure.
[10] 20 June 1990, unreported, SCSA - CCA No 35 of 1990.
[11] In the form of this subsection as it then stood.
In so doing his Honour, appears to have identified as the necessary factors going to an understanding of the nature of an act of sexual intercourse, the same two factors identified by the Victorian Full Court in Morgan. Whilst this was not a direct endorsement by King CJ of the Morgan test in the context of a rape charge, it does assist me in accepting and adopting the Morgan test as the test to be applied in South Australia. It does so because when considering the question of whether or not a complainant consented in the context of a charge of rape or had the capacity to so consent, the question looks to whether or not they consented to, or had the capacity to consent to, the act of sexual intercourse, in fact, undertaken. This requires the person to have an understanding of the nature of the act of sexual intercourse, in fact, undertaken. Accordingly, I propose to apply the test set out in the passage quoted above from Morgan.
In the present case the act of sexual intercourse engaged in was penile penetration of the complainant’s vagina. The first question is whether or not the prosecution has proved beyond reasonable doubt that the complainant did not have sufficient knowledge or understanding to comprehend that what was proposed to be done was the physical fact of penetration of her vagina by the accused’s penis. The evidence which bears on this issue includes the following.
(i)Some of the answers given to the cross-examiner in the passage of evidence from page 75, line 28 to page 78, suggest that the complainant was aware of the nature of the physical act that was to take place on the night in question. This passage of evidence starting with the question “Just wait until I finish the question; …” and finishing with the question (and its answer) “and he did that very slowly, didn’t he” is within the extract of evidence set out above in paragraph [47]. In this respect I have had particular regard to the questions “And you asked him again to put his doodle, his willy, down there, didn’t you”, “P then asked you if you wanted him to put his willy down there”, “and P said to you ‘I am going to put my willy in here’”, and “then P put his willy in your fanny” – to all of which the complainant answered “Yeah”.
(ii)The complainant used the word “rape” on occasion in her evidence. When she was cross-examined as to her understanding of the word “rape” she gave the following evidence (T82-83):
QThat lady asked you what you mean when you use the word “rape”.
AYeah.
QShe asked you that question several times, can you remember that.
AYeah.
QYou said to her, didn’t you, that rape is when the man’s doodle goes inside the fanny.
AYeah.
QIs that right.
AYeah.
QIs that what you think that rape is.
AYeah.
By way of contrast the complainant used the word “sex” to refer to matters of foreplay such as kissing and touching of her leg and her breasts (T147).
(iii)In examination-in-chief, she gave the following further evidence (T38.34 to 39.9):
QWhat’s a doodle.
AYeah, you do with it.
QWho has a doodle, boys or girls.
ABoy.
QWhat does a boy do with his doodle.
APut it right here (indicates).
QDo you know if a doodle does anything else.
APut white stuff out.
QJust say that again.
APut white stuff out.
QAny other stuff come out.
ANo.
There is no description in the transcript of how or to what the complainant “indicated”. However, my clear recollection of her evidence at this point is that she was motioning with her hand towards her vaginal area.
(iv)This topic was followed up in examination-in-chief (T53) where the complainant said that she saw the “white stuff” on the accused’s doodle “before he put it in”.
To the extent that the evidence I have referred to suggests that the complainant had an understanding or knowledge that the male “doodle” might be inserted on occasion in a female’s “fanny”, some of it does suffer from a level of ambiguity. It was not always clear whether the complainant was explaining her knowledge and understanding as at the time of the questioning or as at a time shortly prior to the act of penetration which occurred on the night of 27 September. Nevertheless, the prosecution must prove beyond reasonable doubt that the complainant did not, at the relevant time, have sufficient knowledge or understanding to comprehend or realise that the accused proposed to engage in the physical act of penetrating her “fanny” with his “doodle”. Having heard all of the complainant’s evidence and observed her giving her evidence and after considering in particular the passages of evidence referred to immediately above, I am not so persuaded. In other words, I accept that it is at least a reasonable possibility, on the evidence, that the complainant was aware and able to understand that this physical act was about to take place. Indeed, on the defence case at its highest (although the defence need not go so far as to prove this) the complainant may have initiated the act of the accused putting his “doodle” in her “fanny”.
That is not the end of the matter as far as the prosecution case on this issue is concerned. Notwithstanding that the prosecution has failed to satisfy its burden as to this first component going to capacity to consent, it still may establish lack of capacity to consent by proving beyond reasonable doubt the second component going to capacity. To succeed, it must show that the complainant did not have sufficient knowledge or understanding to comprehend that the act of penetration proposed was one of sexual connection or, as King CJ in Richardson put it, of a sexual character, as distinct from an act of a totally different character such as, to use the example of King CJ, an act bearing the character of a medical or hygienic procedure.
However, having considered the evidence of the history of the parties’ relationship leading up to the night in question some of which I discuss in more detail below in the context of count 3 and also the complainant’s evidence as to her understanding of sexual matters generally, some of which I have already canvassed and more of which I deal with below in the context of count 2, I am not persuaded beyond reasonable doubt that the complainant did not, at the time, understand that the act of penetration proposed and performed was of a sexual character.
It follows that the prosecution has not discharged the burden assumed by it of proving that the complainant did not have the capacity to be able to consent to the act of penetration which occurred.
I stress that I have made no finding that the complainant had such a capacity and no finding that she, in fact, did consent. I find only that the prosecution has not persuaded me beyond reasonable doubt as to the contrary of either of those two propositions. As a consequence, I do not need to go on and consider the accused’s state of mind, at least in the context of the charge of rape. It follows that I find the accused not guilty of the charge of rape.
Unlawful sexual intercourse – issues of consent
The first element of this alternative offence, the occurrence of sexual intercourse, is not in dispute.
The second element requires a finding beyond reasonable doubt that, at the time the accused penetrated the complainant’s vagina with his penis, the complainant was “by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse”. Richardson concerned this same statutory offence but governed by an earlier and different form of wording, namely, that the complainant “was so mentally deficient as not to understand the nature or consequences of the [relevant] act [of intercourse]”.
Notwithstanding an appropriate modernisation of the language, I see no material difference, between the two sets of wording such as to suggest that the reasoning and approach of the Full Court in Richardson should not apply.
In Richardson, King CJ said this:
An understanding of the nature of an act of sexual intercourse is, I apprehend, an understanding of the physical actions constituting the act together with an appreciation that the act is of a sexual character and not of a character of a different kind such as a medical or hygienic procedure. The understanding of consequences which is contemplated is not an exhaustive understanding of all the possible physical and psychological consequences of sexual intercourse, but the sort of understanding of consequences possessed by ordinary persons who are not mentally deficient.
I have already found that I am not persuaded that the complainant did not have an understanding of the physical actions constituting the act of sexual intercourse in question or an appreciation that it was of a sexual character; that is, an understanding of its “nature”. However, the prosecution can still succeed on this charge if it can prove beyond reasonable doubt that the complainant was, at the time, by reason of intellectual disability, unable to understand the consequences of the act of sexual intercourse in question.
It is well established that intellectual disability need only be a substantial contributing cause of any relevant lack of understanding and not the sole cause.[12]
[12] Reg v Beattie (1981) 26 SASR 481.
I leave aside any admissions by the accused in his record of interview (exhibit P4) which can only be of minimal, if any, assistance on this topic. The evidence primarily relevant to this issue of K’s understanding of the consequences of the act of penile vaginal sexual intercourse, adduced by the prosecution, was that of K herself and, of course, her demeanour and presentation in the witness box.
I have already mentioned that there is evidence that the complainant may have misunderstood the correct meaning of the word “rape” and the full extent of the activities encompassed by the notion of “having sex”. In addition, she was unfamiliar with the word “breasts” but did know what “boobs” were (T69) and was unfamiliar with the word “nipples” (T71). However, on its own this suggests no more than a very limited facility with the use of language. It does not, on its own, suggest that the complainant lacks an awareness of the physical actions that might constitute sexual intercourse or the “consequences” of those actions. The complainant was questioned directly on her understanding of the nature and consequences of sexual intercourse and in particular, penile vagina sexual intercourse.
During examination-in-chief the complainant said that a “doodle” had never been in her “fanny” before the night of 27 September. However, she had been touched on her breasts by the accused on other occasions before this night (T49-51). When she was asked if the accused had said why he was touching her in this way she said that he told her “He liked me”.
The complainant gave the following evidence (still during examination-in-chief, T52-54):
QSometimes in your fanny did you ever see blood.
AYeah.
QWhat did you do about that.
AI go to –
QSay that again.
AI go to –
QWe will try it one more time, say it again.
AI go to the bathroom.
QDo you ever put anything around your fanny to stop the bleeding.
AToilet paper.
QWhat about any special kind of thing, was there any special kind of thing that you used.
ANo.
QDo you know how babies are made.
AYeah.
QWho told you about that.
AMy mum and dad.
QDo you remember how old you were when your mum and dad told you about that.
AI was sixteen.
QWhat did you mum and dad tell you about that.
AIt grow in the tummy.
QDid they tell you how a baby begins in the tummy.
ADown there (indicates).
[Counsel for the accused] I’d like that noted that the witness indicated her genital area.
QHow many people are needed to make a baby.
AI don’t know.
QCan a man have a baby.
ANo.
QA woman has a baby.
AYes.
QYou mentioned earlier about white stuff from the doodle.
AYeah.
QDo you know what that is.
ANo.
QOn this time that you have told us about, did you know if there was any white stuff.
AYeah.
QFrom [the accused].
AYeah.
QDid you see that.
AYeah, I see that white stuff.
QWhen did you see it.
ABefore he put it in.
QJust say it again.
ABefore he put it in.
QWhere was the white stuff.
AOn his doodle.
QSay that again.
AOn his doodle.
QCould you feel the white stuff.
AYeah.
QWhere could you feel it.
AIn my fanny.
In cross-examination the complainant agreed that a friend of hers, A, who did not live at AH, had a baby and that the complainant had talked to A about having a baby (T74). She then gave this evidence (T74):
Q[Counsel for the prosecution] asked you if you knew how babies are made; do you remember that.
AYeah.
QYou said that your mum and dad told you how babies are made.
AYeah.
QDo you know that sometimes a boy’s doodle –
AYeah.
Q– touches a girl’s fanny.
AYeah.
QYou know about that, don’t you.
AYeah.
QHave you talked about that with your friends.
ANo.
QTo make a baby -
AYeah.
Q– does the doodle touch the fanny outside or inside.
AInside.
QYou know that, don’t you.
AYeah.
A little later in the cross-examination (T80-81) the complainant gave the following evidence:
Q[After having sexual intercourse with the accused and putting on your knickers] did you see that there was red on your knickers.
AYeah.
QDo you know what that red was.
AThe complainant shook her head indicating “No”.
QYou know what blood is, don’t you.
AYeah.
QYou told the court that sometimes blood comes out of your fanny.
AYeah.
QWhen you saw blood that night on your knickers –
AYeah.
Q– did that scare you.
AYeah.
. . . .
QLater on did you put something in your fanny because of the redness.
AYeah.
QDo you know what a tampon is.
ANo.
QBut you did put something in your fanny, didn’t you.
AYeah.
QBecause of the redness.
AYeah.
The complainant then agreed with the cross-examiner that she was scared after the act of penetration and that she was still scared the next morning and that the reason she was scared was because she had felt pain and because of the redness.
After the defence case had closed I allowed an application by counsel for the defence, to re-open the cross-examination of the complainant specifically with respect to this topic of her understanding of the nature and consequences of conduct of a sexual nature.
The complainant agreed that prior to 27 September she had a boyfriend called J and that sometimes in the lunch room J would sit on her lap. Sometimes J would touch her on her breasts and also on her thigh. She agreed that she liked this. He did not touch her anywhere else. J did this more than once but it occurred only in the lunch room. She was told off by some of the bosses and was told that they should not do this. She said that J was the father of a baby and she liked the fact that he was the father of a baby because she liked babies. She agreed that she and J kissed each other.
The complainant also had a friend called M who lived on her own in a flat in the town. The complainant agreed that she also would like to have a flat of her own and that she had told other people that that is what she wanted to do. She gave the following evidence (T149):
QDid you tell some of your carers what you would do if you had a flat of your own.
AYeah.
QWhat would you do.
AGo out.
QGo out, anything else.
AGo to parties.
QDid you tell your carers that when you were in a flat you would like to have a baby.
AYeah.
The cross-examiner returned to this topic (at T151-152):
QK, you told us that you really, really wanted to go to your own flat.
AYeah.
QYou have told us that when you went into your own flat you would be able to go into town.
AYeah.
QAnd have a day off.
AYeah.
QAnd have babies.
AYeah.
QDid you get an injection into your arm.
AYeah.
QEvery now and then.
AYeah.
QDo you know what that was for.
AWitness indicates.
QIt was in your arm, was it.
AYeah.
QWhy were your having your injection.
ASo I didn’t get my period.
QYou didn’t like those injections did you.
ANo.
QBut your mum and dad, they wanted you to have that injection.
AYeah.
QIf you had your own flat did you want to have injections.
ANo.
QIf you had your own flat you would stop the injection.
AYeah.
QWhy would you stop the injections.
ABecause I want a baby.
QBecause you wanted to have a baby.
AYeah.
Counsel for the prosecution took up this topic in re-examination (T152):
QYou said you wanted to go to the flat to have a baby.
AYeah.
QHow were you going to have a baby.
AIn my tummy.
I accept that the complainant was doing her very best to answer the questions that she was asked by both counsel as to her understanding of the nature and consequences of sexual intercourse and in particular, penile vaginal sexual intercourse. Whilst the defence does not have to prove anything, I am satisfied that it is at least a reasonable possibility on the evidence that the complainant had a rudimentary understanding:
(i)That a woman had a baby and that it grew in a woman’s tummy;
(ii)That the activity whereby a man put his penis into a woman’s vagina could cause a woman to have a baby grow in her tummy;
(iii)That the complainant wanted to have a baby of her own;
(iv)That the complainant realised that the injections she periodically had were intended to stop her having her “period”[13] and may have had something to do with her ability to have or not to have a baby;
(v)That the complainant would need to stop having the injections if she was to have a baby.
[13] It is not at all plain on the evidence that the complainant understood what "her period" was or that it had any relationship with the redness or blood that she sometimes saw on her knickers.
I also find it to be a reasonable possibility on the evidence that the complainant’s mother and/or father had discussions with the complainant from time to time about sexual matters. However, there is no evidence before me as to precisely what topics these discussions may have embraced apart from the very general evidence of the complainant that her parents talked to her about the injections and about how babies are made.
I add that there is no evidence before me from any source independent of the complainant about what sex education and lifestyle education, if any, she may have received. In addition, no evidence was adduced either from an appropriate expert or from the complainant’s family or carers as to the complainant’s intellectual capacity or her background experiences and education.
As for the evidence adduced directly from the complainant, as summarised above on this topic, it again may be seen as ambiguous in part in that it was not always made clear that the questioner was interested in the complainant’s understanding and knowledge as at September 2006 rather than as at the time of the questioning. However, I have real reservations as to whether an attempt to articulate this distinction to the complainant would have achieved anything other than simply to confuse her. To the extent that there was any such ambiguity arising on the cross-examination, it was not taken up or clarified in re-examination and no submission was put, by the prosecution, quite properly in my view, that the evidence should be accepted in any way other than as disclosing the complainant’s understanding as at September 2006.
In Richardson King CJ made the following observations:[14]
The girl in the present case gave evidence of a clear knowledge of the nature of sexual intercourse. The only consequence which was canvassed was that of possible pregnancy and, on her evidence, she clearly understood that. So far as her own evidence went, her mental deficiency had not precluded her from arriving at an understanding of the nature and consequences of sexual intercourse.
It is quite possible, of course, that a mentally deficient person will use words indicating an apparent understanding which does not really exist. There was, however, no expert evidence to that effect.
. . . . .
The jury, of course, had the opportunity to assess the girl while she was giving her evidence. But even if they thought that the evidence as to her understanding could not be relied on, there would still be a lack of positive evidence upon which to base a finding of want of understanding. It is one thing for the jury, having heard a mentally deficient witness, to discard her evidence as to her mental state; it is quite another for them to reach a positive conclusion of want of understanding in the face of her own words and without the support of expert evidence. Where, as here, a mentally deficient person describes her own understanding in terms that are sufficient, it seems to me that it must generally be unsafe to conclude that that person lacks the understanding unless that is established by expert evidence or clearly demonstrated by that person’s words or actions at about the time of the incident.
[14] White J agreed with the reasons of King CJ and Mohr J, in a separate judgment, reasoned to similar effect.
As I have already said, I find it to be at least a reasonable possibility that the complainant had a rudimentary understanding of the connection between an act of penile vaginal sexual intercourse and female pregnancy leading to the female having a baby. In other words, I am not persuaded beyond reasonable doubt, on the evidence adduced, that the complainant did not have an understanding of this potential consequence of sexual intercourse.
There are many other consequences that might potentially arise from an act of sexual intercourse, depending upon the level of abstraction one is prepared to adopt in answer to this question. However, the only potential consequence addressed in evidence concerned the possibility of having a baby. There is minimal, if any, evidence bearing on whether the complainant did or did not have an understanding of any other consequences that might arise following an act of sexual intercourse. However, the burden of proof here is on the prosecution. As such, I do not need to decide which, if any, other consequences ordinarily would need to be considered in order to decide whether the prosecution has demonstrated a lack of “the sort of understanding of consequences possessed by ordinary persons who are not [intellectually disabled]”.
I am not prepared to discard the complainant’s evidence insofar as it bears on her intellectual ability and capacity to understand the consequences of sexual intercourse. As I have said, I am prepared to accept as a reasonable possibility that she, at least, had a rudimentary understanding of the potential consequence of pregnancy. In addition, there is the lack of evidence on the topic of any other potential consequences. It follows that I am not persuaded of any want of the requisite understanding; it has not been established by expert evidence nor has it clearly been demonstrated, on the evidence, by the complainant’s words or actions at about the time of the incident.
I stress again that I have made no finding as to the complainant’s actual understanding of the consequences which might follow from the act of penile vagina sexual intercourse. Whilst I seriously doubt that she has anything but a most rudimentary and inaccurate understanding, I have not been persuaded beyond reasonable doubt that she lacked the relevant understanding as required by s49(6) of the CLCA. Whether or not any inadequacy in her understanding as there may be can be said to arise “by reason of intellectual disability” does not need to be decided. In addition, whether or not the accused knew[15] that the complainant was a person who by reason of her intellectual disability was unable to understand the nature of consequences of penile vaginal sexual intercourse, does not need to be decided.
[15] Given the terms of the subsection, it would appear, although I do not need to finally determine, that reckless indifference is not sufficient to make out the necessary mental element of the accused where s49(6) of the CLCA is concerned.
By way of conclusion to this part, I find that it has not been proved beyond reasonable doubt that the complainant was a person who, by reason of her intellectual disability, was unable to understand the nature or consequences of [penile vaginal] sexual intercourse. I, therefore, find the accused not guilty of the second count, unlawful sexual intercourse contrary to s49(6) of the CLCA.
Indecent assault – issues of consent
In determining whether or not the complainant consented to having her breasts massaged or fondled on the night of 27 September 2006, I have had regard, primarily[16], to the complainant’s evidence both in examination-in-chief and in cross-examination.
[16] That she did so consent is capable of being inferred from certain of the exculpatory statements made by the accused in his record of interview, exhibits P4 and P5. However, these statements were not given under oath and he was not cross-examined on them. Whilst I place some weight on the record of interview in this context, in particular at questions and answers Q33 to Q44 - I do not find this material either overly persuasive on this topic or necessarily reliable and I prefer to rely upon the evidence of the complainant given in these proceedings.
During examination-in-chief, the complainant said that she did not want the accused to take her top off when they were alone together in her bedroom (T37). She said that when he took her top off he touched her on the breasts but when asked if she said anything about him doing that, she said “No” (T38). Later on, still in examination-in-chief, she was asked whether she had ever been touched in this way before. She at first answered “No” but when she was asked again she answered “Yeah”(T49) and again indicated by rubbing her chest although, she described it as her “tummy”. It was at this point that she was asked to describe further what occurred between the two of them and a physical indication was given by her which is described in the transcript as her right hand indicating a gentle touching and slight clutching of her right breast (T50). A little later the topic was revisited and the complainant said that she did not want her breasts to be touched on the night of 27 September (T51).
In cross-examination the complainant was taken, in some detail, to earlier occasions when, on the defence case, the accused had massaged or rubbed her breasts with and without cream (T68-73). During this part of the cross-examination the complainant appeared to accept the defence case to the following effect.
The accused started out massaging her back and shoulders because they were sore after the complainant had fallen off her bike. On occasions the complainant’s bra was tight and uncomfortable and she would get red irritation under her breasts. On one occasion the complainant told the accused that she was sore under her breasts because of the bra and the accused put cream there which made her feel better. After that time the accused put cream under her breasts on a number of occasions all of which occurred in the complainant’s bedroom. Sometimes when he did this he also touched her on the breasts with his hands and the complainant said to the accused that she liked that. On occasions the complainant asked the accused to give her a massage but sometimes the accused said “no” and that he would not do so. At those times the complainant said to the accused that she “really, really wanted a massage”, and he would come to her room and massage her breasts which she liked. She did not tell him to stop this.
As far as the fondling of the complainant’s breasts on the night of 27 September 2006 is concerned, the event the subject of count 3, I have already set out the complainant’s evidence in cross-examination in paragraph [47] above. However, I set out again the critical questions and answers (T77).
QHe asked you, didn’t he –
AYeah.
Q– if you wanted a massage.
AYeah.
QAnd you said “That would be nice”.
AYeah.
QThen L massaged your boobs.
AYeah.
On the basis of all of the complainant’s evidence on this topic, I am not persuaded beyond reasonable doubt that she did not consent to the act of having her breasts massaged or fondled on the night of 27 September 2006.
The question of her capacity to consent to this type of activity again arises. Whilst in the early stages of this aspect of their “relationship” the massaging of her breasts by the accused may have been understood by the complainant as therapeutic only, it is at least a reasonable possibility based on the complainant’s evidence that I have just been through, together with her evidence about the activities she and her former boyfriend J would engage in, that the complainant understood, on the night of 27 September, that the massaging of her breasts was not for a therapeutic purpose but for some other purpose.
I doubt that the complainant would have had much understanding at all of the notion of sexual foreplay and the role it might assume during the process of two persons preparing to engage in an act of sexual intercourse. However, there is a real possibility to my mind that the complainant understood that a man and a woman might engage in this behaviour because they liked each other and because it gave pleasure. In other words, I am not persuaded beyond reasonable doubt that the complainant did not have an understanding of the physical act that was to be undertaken by the accused and that that act was of a sexual or pleasurable character and was not simply therapeutic. Such an understanding, by analogy with the approach I have taken to the capacity issue in the context of rape as already described by me, would be sufficient to demonstrate that the complainant had the capacity to consent to having her breasts fondled.[17]
[17] See also R v Eastwood (1998) 114 A Crim R 448.
It follows that I am not persuaded that the accused’s conduct, the subject of count 3, was unlawful and therefore he is to be acquitted of the charge of indecent assault.
Conclusion
The defendant will be acquitted of all three charges. I add that this acquittal does not necessarily mean that the accused did not take unfair advantage of the complainant. It is not my task to make a finding either way on this issue. The acquittal arises because the prosecution has failed to prove the required subjective elements (from the complainant’s perspective) of each of the three offences charged. It is quite likely that the complainant had a very imperfect understanding of the nature and consequences of the activities in which she engaged with the accused, particularly the act of sexual intercourse, but so do many “ordinary” persons who are not intellectually disabled. It would be inappropriate to discuss in these reasons questions of sexual morality or what the general community may regard as proper or improper in circumstances such as those that arose in this trial. The criminal law does not prohibit, outright, acts of sexual intercourse with an intellectually disabled adult person. In order to make out a criminal offence, the prosecution must prove beyond reasonable doubt each of the elements of the relevant offence including any subjective elements. In this difficult case the crown has been unable to do this.
I enter the following verdicts:
(i)On count 1, the charge of rape, the accused is not guilty;
(ii)On count 2, the charge of unlawful sexual intercourse contrary to s49(6) of the CLCA – charged as an alternative to count 1, the accused is not guilty;
(iii)On count 3, the charge of indecent assault, the accused is not guilty.
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