R v T, D - [2016] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, D
Criminal Trial by Judge Alone
[2016] SADC 75
Reasons for the Verdicts of His Honour Judge Tilmouth
7 July 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT
Elements of the offence of rape where complainant is intellectually disabled, considered and discussed.
Criminal Law Consolidation Act 1935 (SA) s 5, s 47, s 48(2)(a), s 48(A)(2), s 49(6); Evidence Act 1929 (SA) s 13(7), s 34CA(1), s 34CA(5)(b), s 34L, s 34P, s 34P(4); Summary Offences Act 1953 (SA) s 74D(1)(c)(i), s 74D(1)(c)(ii); Crimes Act 1958 (Vic) s 36(a); R v Morgan [1970] VR 337; R v Abbott [1984] 1 Qd R 342; R v Beserick (1993) 30 NSWLR 510; R v Eastwood (1998) 114 A Crim R 448; R v Sadaka [2015] VSCA 288; R v Mobilio [1991] 1 VR 339; R v Holman [1970] WAR 2; R v Cook [1986] 2 NZLR 93; Black v Corkery (1988) 33 A Crim R 134; R v Collingridge (1976) 16 SASR 117; Alister v The Queen (1984) 154 CLR 404; R v Mai (1992) 26 NSWLR 371; Milenkovski v Western Australia [2004] WASCA 85; Woolmington v DPP [1935] AC 481; R v Reeves (1992) 29 NSWLR 109; Azzopardi & Davis v The Queen (2001) 205 CLR 50; R v Schlaefer (1984) 37 SASR 207; Murphy v The Queen (1989) 167 CLR 94; R v Hinton [1961] Qd R 17; R v Laz [1998] 1 VR 453; R v Fletcher (1859) Bell CC 63; R v Fletcher (1866) LR 1 CCR 39; R v F (1910) 74 JP 384; R v Howard (1966) 50 Cr App R 56; R v Colgan (1958) 59 SR (NSW) 96; R v Morgan [1970] VR 337; R v Olasiuk (1973) 6 SASR 225; Pereira v DPP (1988) 63 ALR 217, referred to.
R v Richardson Unreported Supreme Court of Australia, Court of Criminal Appeal, 20 June 1990; R v Beattie (1981) 26 SASR 481, discussed.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - OTHER OFFENCES
Examination of the elements of the offence of indecent filming, contrary to s 26D(1) of the Summary Offences Act.
Summary Offences Act 1953 (SA) s 26(A), s 26D(1), referred to.
R v C,M [2014] SASCFC 116, applied.

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Examination of the circumstances and principles permitting an extension of time in which to elect for trial by Judge alone.
Juries Rules 1996 (SA) r 42(1), r 42(5), referred to.
R v Gavare (2011) 274 LSJS 553, applied.

R v T, D
[2016] SADC 75
Table of Contents
The charges in brief
The charges - background
The preliminary course of the proceedings
Severance and cross-admissibility
Trial by Judge alone
Protected witness application
Evidence of admissions
The charges – elements of offences
Unlawful sexual intercourse
Rape
Attempted rape
Indecent filming
Threatening to cause harm
Fundamental legal principles
The evidence in respect of the charges
Count 1 – Unlawful sexual intercourse
Count 2 – Digital rape
Count 3 – Rape cunnilingus
Counts 4 and 5 – Indecent filming
Count 6 – Attempted rape
Psychological evidence
Mental disability – MM and DG
Capacity to consent – an overview
Capacity to consent – the context
Counts 2 and 3 – capacity to consent
Counts 2 and 3 – analysis
Consent
i. Intellectual incapacity
ii. Carer relationship
iii. Dependency relationship
iv. No prior sexual experience
v. Age differential
Freely and voluntarily agrees - correlation of factors
Compulsion
The mental element of rape
Count 6 – Attempted rape
Counts 4 and 5
Conclusion and Orders

The charges in brief

The accused DT is before the court charged on an Information filed on 18 May 2016, with one count of unlawful sexual intercourse, two counts of rape, one of attempted rape, two of indecent filming and one of threatening to cause harm. He pleaded not guilty to all charges bar that of threatening to cause harm, to which he pleaded guilty when arraigned on the same day. This Information was filed in lieu of an earlier one involving substantially the same offences.
The trial proceeded as trial by Judge alone during the latter part of May 2016. These reasons explain why the verdicts delivered at the conclusion hereof, are reached.
The charges - background
The charges of unlawful sexual intercourse, the two counts of rape, and the two counts of indecent filming, are alleged to have taken place at the home of DT in Golden Grove, a North Eastern suburb of Adelaide, on 16 November 2013. The attempted rape is alleged to have occurred in his home on 19 November 2013. The threat to cause harm arose from a telephone call made by him on 20 November 2013.
The accused had assumed responsibility as an informal carer of the complainant MM, through an arrangement made with her father. Under this arrangement he supervised her financial affairs, provided respite care, assisted her with paperwork and finances, and organised her transport to various places, amongst other things. This relationship commenced when MM was in high school.[1] A pattern developed over an indefinite period of time before November 2013, whereby she would stay over at the accused’s home, more or less fortnightly. He lived alone in the same general area as MM and her father.
[1] Here and later, letters are used so as to avoid the risk of revealing the identity of the alleged victim(s), in accordance with s 71A(4) of the Evidence Act 1929 (SA).
The second ‘complainant’ DG was a long-time friend of MM. They went through primary and high schools together.[2] DG left school in or after completing Year 13 when he was 19.[3] Afterwards they maintained a social friendship over the two or three years before the events in question. Both clearly suffer from a significant degree of mental deficiency, as will emerge.
[2] T76.38-77.27.
[3] T76.6-.11.
On Saturday 16 November, MM was at the home of the accused, although whether she stayed the previous night is unclear. DG had previously visited this home a few times, usually at the invitation of DT. In general terms the evidence was that they would ‘hang out’, play video games, listen to music and make general conversation during past visits.
He was telephoned by DT on this particular day and invited over. In the late afternoon all three ended up in the spare bedroom, used as such by MM when she stayed overnight. DT is alleged to have told MM to take her pants and underpants off, and that he would ‘supervise’ them. On the prosecution case, in the guise of instructing DG how it was done, DT inserted his fingers into MM’s vagina.[4] This act of penetration underpins count 1, the allegation of unlawful sexual intercourse with a person under disability, contrary to s 49(6) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[4] T93.32-94.4.
DT is then alleged to have told DG to do the same thing. DG complied by inserting his finger into her vagina, bringing it in and out ‘for a while’.[5] This forms the core allegation of count 2, the charge of rape contrary to s 48(2)(a) of the CLCA, of compelling MM without her consent to have sexual intercourse with DG, knowing that she was not consenting or being recklessly indifferent as to whether she consented. The Crown case is that DG then performed an act of cunnilingus on MM at DT’s direction.[6] This is the basis of the allegation of the second count of rape on count 3, a charge of compelling MM to have sexual intercourse with DG without her consent.
[5] T94.5-.30.
[6] T94.36-95.7.
A significant portion of the activity relating to the first count of rape on count 2, was filmed by DT on his mobile phone. This was recorded at 5.31 pm that day, and spans 4 minutes and 56 seconds. That recording gives rise to the charge of indecent filming of MM without her consent on count 4, contrary to s 26D(1) of the Summary Offences Act 1953 (SA) (SOA). DT also filmed a smaller segment of the activity surrounding the second charge of rape (count 3) at 6.05 pm, lasting some 57 seconds. This forms the basis of the second allegation of indecent filming of DG without his consent, contained in the fifth count of the Information. Both films form the single Exhibit P4A. The transcript thereof was marked Exhibit P4B. It might be noted that as charged, the two indecent filming counts focus on the participant, rather than on the two distinct acts of indecency.
There is an uncharged allegation subject to a discreditable conduct notice pursuant to s 34P of the Evidence Act 1929 (SA), which the prosecution maintain is admissible as indicating an interest by the accused in DG. The allegation emanates from the evidence of DG, to the effect that on a following Tuesday (probably that immediately following), DG was again invited to the accused’s home where sexual activity of a similar kind occurred in the same room between him and MM.[7] Nothing further occurred on this subsequent occasion. DG’s evidence was that at some time on a Tuesday he was again dropped off at the accused’s home when MM happened to be there and when after their usual entertainment activities, he went into the spare bedroom with MM ‘to have some fun with MM … just finger her’, at a time when the accused was not in the room but was about the house. The evidence of DG was that afterwards they had an evening meal together and he then went home.
[7] T99.8-99.22.
The count of attempted rape (count 6) is alleged to have occurred on 19 November 2013 at the accused’s home, with respect to a third victim who was then an 18 year old man, JP. JP appears to have a background of some social disadvantage. He lived close by in the same street as DT. The prosecution alleges the accused contacted JP enticing him to come over, at a time when MM was staying and entreated him to ‘lick MM out’. In the process he is alleged to have shown JP footage of the earlier events recorded on his mobile phone on 16 November. JP was then asked if he would like to do the same things to MM. He replied that he was not interested as he had a girlfriend.
JP’s evidence was that he was so disgusted by the suggestion that he vomited before leaving. During this episode the accused is alleged to have touched his groin area and expressed enjoyment. These events give rise to the charge of attempted rape laid contrary to s 48(2)(a) and s 270A of the CLCA, in that the accused attempted to compel JP to have sexual intercourse with MM without her consent or being recklessly indifferent. The ‘groin’ incident is further put forward by the prosecution as admissible discreditable conduct evidence.
The course of events thereafter was that JP spoke about the incident involving him the following day with his carer RG, that is on 20 November 2013. RG reported the matter to the local police soon after. Police then spoke to MM and DG and then the accused on 29 November, when he was advised of the nature of the allegations against him and arrested. They searched his home and seized his mobile phone, on which the recordings referred to above were found.
During that afternoon of 20 November, the accused is alleged to have telephoned RG making threats to this effect:[8]
I know what you have done you dogs. I’ve got a bit of money behind me and I will get someone to put a bullet between your eyes. I will get Fat boy cause he is a bikie to fix youse up. Better still I’ll wait until I go for sentencing and when I am sentenced I will get a gun myself and blow you two away and shoot myself.
This threat forms the allegation to which DT pleaded guilty, namely that on 20 November 2013, he without lawful excuse threatened to cause harm to RG intending to arouse a fear the threat would be or is likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused, contrary to s 19(2) of the CLCA.
The preliminary course of the proceedings
[8] Statement 1 February 2014, p 12.
Severance and cross-admissibility
Before the trial commenced, a number of preliminary issues fell for determination. These included an application by defence to sever count 7 even though the plea of guilty was entered. This incident was also the subject of the discreditable conduct notice filed pursuant to s 34P(4) of the Evidence Act. The defence case is one of denial of the events charged on count 1 and count 6, and for that matter of the uncharged acts, and alternatively consent. Whereas on counts 2, 3, 4 and 5 it is one of consent. A denial of the requisite mental element on counts 1, 2 and 3 are equally in issue as is compulsion on counts 2, 3 and 6.
Trial by Judge alone
After several early exchanges with counsel, the court expressed some diffidence in managing a jury, given the graphic nature of the film of the two events surrounding counts 2 and 3. An election was soon made by the accused for trial by judge alone. The application was not opposed by the prosecution in the circumstances. The challenge of managing a jury to whom it was proposed to show graphic and highly distressing evidence was a formidable one. I considered such evidence would undoubtedly unsettle and distract jurors from an impartial, fair minded and dispassionate consideration of the case.
Further difficulties facing a jury included the complexities of the different requirements of consent on counts 2-6 inclusive, in contrast to unlawful sexual intercourse on count 1, which was pressed on the basis of an intellectually disability rendering MM incapable of conferring consent. To compound matters still further, there is an extended definition of consent in the CLCA, whereas in the SOA there is not.
Even though r 42(1) of the Juries Rules 1996 (SA) ordinarily requires such elections to be made on first arraignment, it was nevertheless appropriate to extend the time prescribed thereunder, as there were ‘special reasons for doing so, and that it was unjust not to do so, notwithstanding that such period has expired’, as provided for in r 42(5) of the Juries Rules. The insurmountable difficulties summarised above, clearly made it appropriate to conclude there were special reasons for the efficient and just management of this trial, both equally in the interests of the fair trial of the accused and in the interests of the prosecution witnesses suffering some form of mental impairment, to so proceed.
Protected witness application
At that early stage of proceedings, the prosecution proposed to adduce DG’s evidence-in-chief by video recording pursuant to s 34CA(1) of the Evidence Act, as a protected witness. There was no such application in respect of MM. This prospect required a preliminary enquiry as to whether DG was a person suffering from a mental disability that adversely affected his capacity to ‘give a coherent account of the person’s experiences or to respond rationally to questions’, as required by s 34CA(5)(b) of the Evidence Act. The term ’mental disability’ is further defined by s 4 of the Evidence Act to include ‘an intellectual disability’, whereas there is no such extended definition in the CLCA.
These separate inquiries served only to further compound matters, insofar as the charge of unlawful sexual intercourse under s 49(6) of the CLCA requires proof of knowledge by the accused that the victim was ‘by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse’. Accordingly, there were to be two prospective inquiries on essentially one and the same issue, that is the question of ‘intellectual disability’, one before empanelling a jury under s 34CA of the Evidence Act, and the other after empanelment under s 49(6) of the CLCA. Accordingly this would have required the psychological evidence proposed by the prosecution, to be led twice, which was an inefficient and impractical course.
In those additional circumstances the ameliorative powers conferred by the Juries Act ‘designed to facilitate an extension in an appropriate case … primarily ... directed to control process and avoid abuse of process’, properly facilitated an order for trial by Judge alone: R v Gavare.[9]
[9] (2011) 274 LSJS 553: [2011] SASCFC 38, [59].
Evidence of admissions
During the course of the trial, Mr Koehn counsel for the accused, objected to evidence of a conversation between Detective Brevet Sergeant Miller and DT at his home at about 1.30 pm on Saturday 23 November 2013. Detective Miller went to the home of DT following receipt of the information relating to MM and her relationship with DT, on Thursday 21 November 2013. This included hearsay information that a video was taken of a sexual encounter between the two. They first interviewed MM at about 12.45 pm on the 23^rd. Following this interview Miller formed the view that she did not ‘provide any information to indicate that … DT … committed any offences involving her or anyone else’.[10]
[10] T276.35-277.2.
He attended DT’s home in possession of a General Search Warrant, where he was permitted entry by DT. Following the information received earlier, Detective Miller questioned DT ‘in regard to his role as carer for MM’ and asked him whether he possessed a mobile phone and requested permission to inspect it.[11] DT consented to this course.[12] DT told him he had just ‘gotten off the phone to MM’.[13] In the course of the ensuring exchange to which objection is taken, DT told Miller that he was ‘unaware of how the (sic) operate the camera function on the mobile phone and was not aware of any inappropriate recordings on the phone’.[14] DT further told Miller that MM and DG ‘had been to the house and he may have had access to the phone’.[15]
[11] T277.26-.31.
[12] T279.6-.8.
[13] T277.35-.36.
[14] Statement of Detective Miller, 27 February 2014, p 3, T277.37-278.14.
[15] Statement of Detective Miller, 27 February 2014, p 3, T278.12-.14.
Objection is taken to this conversation because of the failure to record it, an obligation arising pursuant to s 74D of the SOA. So far as relevant this provides:
74D—Obligation to record interviews with suspects
(1)An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a)if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
It is conceded that Miller had the equipment available to record the interview. No objection was taken to the seizure of telephones belonging to the accused, since Miller ‘was satisfied at the time of seizure that there were images which may constitute an offence’.[16] Detective Miller’s evidence-in-chief on the voir dire was that on the basis of the information available to him and particularly following the interview with MM, it was ‘hard to determine as to whether she could have consented’.[17] Yet he remained troubled that her ‘mental disability could impair her from consenting to that type of activity’.[18]
[16] T278.37-297.5.
[17] T279.27-.34
[18] T279.27-.34.
Miller, an experienced officer, was plainly aware of the obligations to record as imposed by s 74D of the SOA. When questioned by Mr Powell counsel for the prosecution, whether he considered recording this conversation, he responded as follows:[19]
No, I didn’t. Even when I received the information from Golden Grove Police Station we still weren’t satisfied enough to even raise a police incident report that an offence had been committed until we made some further inquiry because that information had some third hand and then after speaking with (MM) herself and her making no disclosure we certainly didn’t form a suspicion that there had been an offence. However, we still thought it prudent to make some inquiry with (DT).
[19] T281.6-.15.
Under cross-examination, Detective Miller conceded that at the time of interviewing MM he held ‘a suspicion that an offence might have been committed by DT’.[20] However that suspicion was limited to the possibility of ‘indecent filming’.[21] Such an offence would not have attracted the operation of s 74D of the SOA because it was not an ‘indictable offence’. Detective Miller freely admitted during an exchange with defence counsel, he had not administered a caution to DT at all, and that he made no note of the conversation.[22]
[20] T284.29-.31.
[21] T284.32-.38.
[22] T286.13-.26.

It was possibly the above quoted passage from the evidence of Detective Miller that led Mr Powell during the course of his submissions on admissibility, to concede Detective Miller ‘had in mind the potential for investigating indictable offences’.[23] That concession was properly made. It can be conceded that Detective Miller was in a difficult position, having a complainant emphatically denying any impropriety, as against creditable information that she may have lacked capacity to consent. Whilst the concession was properly made, it should not be seen as reflecting adversely upon Detective Miller. He was in an obviously difficult, and most unusual situation.
[23] T291.16-.17.
Mr Powell nevertheless sought to justify reception pursuant to s 74E(1)(b) of the SOA, which provides that evidence not recorded is inadmissible unless:
… the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance.
The evidence was however excluded for these reasons.
Firstly, Detective Miller was in some quandary before speaking to DT. Once he opened the mobile phone and viewed the video, he plainly formed the view that DT’s voice could be heard on it, and that the woman involved was MM. The nature of the video clip accorded with the information received earlier about it.[24] He had by that time clearly formed the view upon seizure of the mobile phone pursuant to s 67(4) of the SOA, that it might afford evidence of the commission of an offence.[25] That being the case, a further obligation arose either to make a written record of his earlier conversation with DT ‘as soon as practicable’ thereafter as required by s 74D(1)(c)(i) of the SOA, and that the terms of the earlier exchanges are read to DT aloud and recorded on videotape, as required by s 74D(1)(c)(ii) thereof.
[24] T287.19-.38.
[25] T288.9-.15.
The prosecution sought to justify reception in the interests of justice, as revealing a consciousness of guilt on the part of DT, went to his credibility, on the premise that he lied as to his ability to record on his mobile phone, and in the suggestion that someone else must have done so without his knowledge. In either case he clearly lied as to those subjects. However the exchange with Miller took place in circumstances when DT was likely to have responded more out of embarrassment than of a knowledge that the truth would implicate him in the commission of an offence: R v Ciantar.[26] That being so, even if admitted, this evidence would not be allowed for that incriminating purpose, so it was consequently not in the interests of justice to admit it.
The charges – elements of offences
[26] (2006) 16 VR 26, [86].
Unlawful sexual intercourse
With respect to unlawful sexual intercourse with a person with an intellectual disability on count 1, the prosecution must prove beyond reasonable doubt that sexual intercourse occurred by the act of the accused inserting his finger(s) into the vagina of MM, on or about the date charged. For the purposes of this charge as well as for counts 2 and 3, ‘sexual intercourse’ includes penetration of the vagina by a finger of another, as well as cunnilingus: s 5 CLCA. Further, it must be proven MM was ‘by reason of intellectual disability unable to understand the nature or consequences of sexual intercourse’. Thirdly, it must be proven the accused knew MM was unable to understand the nature or consequences of sexual intercourse by reason of that intellectual disability. Consent otherwise affords no defence to this charge: s 49(7) CLCA.
In R v Richardson,[27] King CJ described the expression ‘so mentally deficient as not to understand the nature or consequences of the act’ as then contained in the now repealed s 49(6) of the CLCA, in this way:[28]
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 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.
Although the wording of the two successive pieces of legislation is slightly different, there is no material difference for the purposes of the requisite understanding. Neither counsel suggested otherwise. Nor is the following description of the purpose lying behind s 49(6) of the CLCA as it then stood, any different in substance from that now applying as described by Mohr J in a concurring judgment in R v Richardson:
I have not in these reasons discussed any questions of sexual morality, or what the general community may regard as proper or appropriate on that topic, as it seems to me that that matter is outside the scope of our considerations. The Act does not prohibit the act of sexual intercourse with a person who is mentally deficient if they do not come within the ambit of the section. In other words, it is not a blanket prohibition on a mentally deficient person engaging in consensual acts of sexual intercourse but is directed at such persons who as well as being mentally deficient do not understand the nature or consequences of the sexual act. If they do not understand the fact that they may be more easily persuaded to take part in sexual intercourse than a person of normal intelligence, although viewing the population as a whole that is not established, is not to the point.
[27] Unreported Supreme Court of South Australia, Court of Criminal Appeal, King CJ, White and Mohr JJ, 20 June 1990.
[28] The new amendments coming into effect on 6 June 1991.
In Richardson the court allowed an appeal and entered a verdict of acquittal, because there was no expert evidence directed to the apparent understanding of the complainant of the physical actions constituting the sexual act, or as to her appreciation of its consequences. The position is otherwise in this case as will be seen.
The former provision was the subject of further consideration in R v Beattie.[29] It was submitted on appeal that mental deficiency must be the sole cause of the lack of understanding of the nature or consequences of the sexual act. This submission was rejected:[30]
I am unable to see any warrant for these contentions in the section. The words "so mentally deficient as" import some causal link between the mental deficiency and the lack of understanding, but there is no indication in the section that this link must be by way of total incapacity to understand. Nor can I find any indication in the section that the mental deficiency must be the sole cause, as distinct from a substantial contributing cause, of the lack of understanding. … I think, moreover, that it is sufficient if the mental deficiency is a contributing cause of the lack of understanding even though other causes, such as lack of instruction, may also be present.
[29] (1981) 26 SASR 481.
[30] Ibid, 495 per King CJ, Sangster and Legoe JJ concurring.
In the same vein the trial Judge (White J) rejected a contention that s 49(6) of the CLCA required the phrase ‘as not to understand’ to be construed as meaning ‘as not to be able to understand’ or ‘as not to be capable of understanding’.[31] His honour reasoned:[32]
It may be that understanding of the "nature'" of the act includes understanding of the physical act together with perception of its character (ibid; see also Morgan), but with the materials at hand at the time of my summing up, I directed the jury that it was an understanding of the physical act that was about to take place.
[31] Ibid 491, emphasis in original.
[32] Ibid.
White J elaborated on his reasons for so construing the section:[33]
It was the contention of counsel for the defence that her capacity to understand this consequence of intercourse took her outside of the protection of the section, and he asked me to direct the jury accordingly. However, I ruled that the section protected not only those who did not in fact understand, provided the lack of understanding of the latter was related in a relevant sense to the degree of mental deficiency. The words of the section ("so mentally deficient as not to understand" &c.) do not expressly convey anything about capacity.
… If the section were to be restricted to the protection of those persons who lacked the capacity to understand at all, it would only cover the former well-established categories of "idiots and imbeciles"; and nothing would have been achieved by the repeal of the former s. 55 and the enactment of the new section, apart from a re-statement of the former offence in more polite and modern language. The former categories of idiot and imbecile had the virtue of clarity and the vice of crudeness. If Parliament had intended merely to replace the old concepts with more acceptable modern language, the section would have expressly referred to "capacity to understand", I can see no justification for implying the concept of capacity merely to confine the operation of the section, when Parliament has chosen not to use words connoting capacity. The words of the section show an intention to afford protection to a wider class than hitherto.
Interpreted in the way I ruled, the section protects only those persons who are both mentally deficient and sexually ignorant because of that mental deficiency. Such persons require protection from themselves. And the accused has the further protection that he is not guilty unless he knows she is so mentally deficient as aforesaid.
[33] Ibid 492-493.
In R v Morgan,[34] to which White J made passing reference in the first of the above quotations, it was held:
... 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 connexion as distinct from an act of a totally different character.
This proposition has gained wide cross-jurisdictional acceptance: see R v Abbott,[35] R v Beserick,[36] R v Eastwood,[37] and R v Sadaka.[38]
[34] [1970] VR 337, 341.
[35] [1984] 1 Qd R 342.
[36] (1993) 30 NSWLR 510, 531.
[37] (1998) 114 A Crim R 448, [28]-[34], CCA Victoria.
[38] [2015] VSCA 288.
After referring to Morgan in R v Mobilio,[39] the Court of Criminal Appeal of Victoria added:
In deciding whether a woman who knew the nature and character of an act of sexual intercourse had the capacity to give a real consent to it, a jury could have regard to such things as her capacity to appreciate that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy and that a decision to consent or not involves questions of the morality or social acceptability of the conduct. We think the court is to be understood as meaning that in saying that those things are not outside the purview of the jury.
[39] [1991] 1 VR 339, 351.
Rape
Turning to the elements of the offence of rape charged on counts 2 and 3, the prosecution is required to prove to the requisite degree an act of sexual intercourse, that DG inserted his finger into the vagina of MM on count 2, and that he performed the act of cunnilingus in respect of count 3. The next ingredient demanding proof is that of compulsion. For this purpose ‘compels’ is defined in s 48A(2) of the CLCA in this way:
compels—a person compels another person if he or she controls or influences the other person's conduct by means that effectively prevent the other person from exercising freedom of choice
At common law the mere fact that pressure was applied to a person to consent, was not of itself sufficient to invalidate the consent or to make it other than a voluntary choice, since consent to intercourse may be hesitant, reluctant, grudging or tearful, but if consciously permitted it was not rape: R v Holman,[40] R v Cook.[41] However the pressure may reach such a degree that the act will lose its voluntary characteristics: Black v Corkery.[42] This is a question of fact.
[40] [1970] WAR 2, 6.
[41] [1986] 2 NZLR 93, 97.
[42] (1988) 33 A Crim R 134,142.
The third ingredient required for proof of counts 2 and 3, is actual knowledge by DT that MM was not consenting to the act of intercourse, or that he was recklessly indifferent as to whether she consented. Such a state of knowledge, is to be inferred from what he said and did, and by drawing inferences from proven facts.
‘Reckless indifference’ is defined for this purpose in s 47 in the CLCA as follows:
For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—
(a)    is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b)    is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c)    does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
Attempted rape
The further element required in proof of the sixth count of attempted rape in addition to those applicable to counts 2 and 3 (putting the act of penetration aside), is that what was done went beyond mere preparation to commit that offence. The accused must have actually embarked upon the commission of the offence with an intention on his part to compel MM to have sexual intercourse with JP, accompanied by the requisite mental element: R v Collingridge,[43] Alister v The Queen.[44] In assessing whether a step or steps toward the commission of an offence is sufficiently proximate to it rather than too remote, what was done must be reasonably characterised as having no other purpose other than the intended commission of rape: R v Mai,[45] Milenkovski v Western Australia.[46]
[43] (1976) 16 SASR 117, [18].
[44] (1984) 154 CLR 404, 421, 467.
[45] (1992) 26 NSWLR 371, [2].
[46] [2004] WASCA 85, [23].
Indecent filming
Turning next to the two charges of indecent filming, s 26D(1) of the SOA makes it an offence for a person to engage in indecent filming. It is a defence under s 26D(2)(a) when the indecent filming ‘occurred with the consent of the person filmed’. ‘Indecent filming’ itself is defined in s 26A thereof to mean:
indecent filming means filming of—
(a)another person in a state of undress in circumstances in which a reasonable person would expect to be afforded privacy; or
(b)another person engaged in a private act in circumstances in which a reasonable person would expect to be afforded privacy; or
(c)another person's private region in circumstances in which a reasonable person would not expect that the person's private region might be filmed;
It can be seen that whatever variant of this definition comes into play, the gist of the offence centres upon offending the reasonable privacy of the person filmed. As pointed out earlier, there is no statutory extension of ‘consent’ in the SOA, as there is in the CLCA. It might be thought at first sight that counts 4 and 5 are duplicitous, in that the same two persons are involved in each instance. But then again, the focus of the definition of ‘indecent filming’ is on personal privacy. Nevertheless, as a separate and different act of indecency is charged, that moot point need not be taken any further. Section 5 of the SOA places the onus on the accused to prove consent in respect of each count. This provision therefore requires DT to satisfy the court on the balance of probabilities, that it was more likely than not that he had the consent of MM and DG respectively: Rowe v Manevski.[47]
[47] (1994) 62 SASR 468, 469, 473.
Threatening to cause harm
Finally the seventh count of threatening to cause harm is brought contrary to s 19(2) of the CLCA. As there was a plea of guilty to this offence, there is no need to define the elements thereof, whereas the question of admissibility with respect to other counts will require further consideration.
Fundamental legal principles
The constituent elements of all charges each require proof beyond reasonable doubt. The accused comes before the court with the presumption of innocence in his favour, so that he is entitled to the benefit of any reasonable doubt: Woolmington v DPP.[48] He is not required to prove his innocence: R v Reeves,[49] Pryor v The Queen.[50] Nor is he required to give evidence, to call any other evidence and the failure to do so is not evidence against him, does not constitute an admission, may not be used to fill gaps in the prosecution case, and may not be used as a make-weight in assessing whether the prosecution has proven its case beyond reasonable doubt in respect of each count: Azzopardi & Davis v The Queen.[51]
[48] [1935] AC 481, 482.
[49] (1992) 29 NSWLR 109, 117
[50] (1969) 43 ALJR 388, 388.
[51] (2001) 205 CLR 50, [51].
As a general proposition, each offence must be considered separately on the evidence admissible solely with respect to that offence: R v Schlaefer.[52] The accused is entitled to an impartial and detached consideration of the charges without letting matters of sympathy, prejudice, sentiment or emotion to play any part in the fact finding process: Murphy v The Queen.[53]
The evidence in respect of the charges
[52] (1984) 37 SASR 207, 210.
[53] (1989) 167 CLR 94, 100.
Count 1 – Unlawful sexual intercourse
The sole oral evidence against DT with respect to this count came from DG, who gave evidence by video link. Despite this measure, no adverse inference is to be drawn against DT, and taking that measure does not otherwise influence the weight to be given to his evidence with respect to all counts on which his evidence is relevant and admissible: s 13(7) Evidence Act.
There is no ‘complaint’ evidence on this count as such, and there is no independent evidence supporting or tending to confirm in any way the evidence of DG in respect to this count. The core allegation is that DT inserted his finger into MM’s vagina in the course of explaining or instructing DG as to how it was done. At the close of the prosecution case defence counsel submitted there was no case to answer, because the necessary actus reus, that of penetration, was simply lacking.
The evidence of DG in-chief on this was quite thin, and it was this:[54]
[54] T89.9-89.33.
QWhat did you say.
AI think I saw him putting it in there. It’s a long time ago.
QWhat do you remember him putting in.
ACan’t remember.
QWhen you say ‘put it in there’, do you mean put it into –
…
QYou said that you think [DT] put it in there.
ANot sure.
QWhen you say ‘it’, ‘he put it in there’, what do you mean by ‘it’.
ANot sure.
QWhen you say ‘there’, what do you mean by ‘there’.
ANot sure.
QDo you think he put something somewhere.
AYep.
QA moment ago you said that you think he showed you and [MM] what to do.
AYep.
QWhat did you mean by that.
ANot sure.
QWhat did you do.
AI fingered her, yep.
Defence counsel dealt with this topic in cross-examination, which so far as count 1 is concerned, proceeded as follows:[55]
[55] T112.31-.38.
QSo did you then ask [DT] for some help.
AYep.
QDid he then show you where to put your finger.
AYep.
QDid he just point to that.
AYeah, I think so.
QHe didn’t touch [MM] when he did that, did he.
ANo, I don’t think, yeah.

Mr Powell revisited this issue in re-examination:[56]
[56] T113.10-.38.
QDo you remember that you said to a question that I asked ‘I think I saw him put it in there’.
ABut I’m not sure, it’s not a definite yes.
QDo you remember that was the answer that you gave, ‘I think I saw him put it in there’, or something like that.
AWell, I’m not sure.
QYou’ve now been asked some questions by the defence lawyer on that same topic.
AYep.
QAnd he said to you ‘He didn’t touch her’ and you said to him ‘No, I don’t think so’.
AYep.
QDo you see that those two things are slightly different.
AYep.
QThe answer that you gave to me ‘I think I saw him put it in there’, and now ‘No, I don’t think so’.
AYep.
QThink back on that day and what you saw in the room, can you say which of those answers is the correct one.
AI don’t think so.
QWhat did you see him do.
AHe just pointed, I think.
QIs that something you are sure about.
AYep.
QDo you have an actual memory of that.
ANo.
QWhy do you say you are sure.
AI’m pretty sure.
It can be seen in the first place that DG was hesitant as to the act of penetration by the accused, and that he eventually resiled from his earlier evidence in the second, so that in the end result the submission of no case to answer was upheld.[57] Indeed Mr Powell fairly conceded as much.[58]
[57] T298.25-.35.
[58] T297.22-.38.
Count 2 – Digital rape
The evidence on this count begins with DG. It far from ends there because of the recording of a portion of the subject activity, contained on DT’s mobile phone, Exhibit P4A. As this recording occupies nearly five minutes, and as the second recording commenced just under thirty five minutes later, it can be assumed that the entire course of events occupied much longer than the five minutes.
The evidence of DG was that he visited MM at the accused’s house from time to time to listen to music and play computer games. On this particular day he and MM ended up in her bedroom where ‘I was fingering her’, ‘in the pussy’, when DT was present.[59] This encounter arose because DT arranged by telephone for DG to come over ‘to surprise her and to have some fun’.[60] DG said that he and MM just went in to the bedroom,[61] where she ‘took her pants off and knickers’, and ‘I started fingering her’.[62] He added that whilst he was doing so, ‘she seemed happy … she had a big smile on her face’.[63]
[59] T84.27-.33.
[60] T85.8-.31.
[61] T87.34-.36.
[62] T88.3-.6.
[63] T90.19-.25.
DG added through the course of his evidence-in-chief that DT ‘was there, just for guidance’,[64] ‘that he was there to supervise in the room’,[65] that he could not remember if DT was saying anything,[66] and that he was ‘ok with it’ and with DT being in the room.[67] It is principally on the basis of the video evidence contained in Exhibit P4, rather than the evidence of DG, that the conclusion, of fact reached later, rests.
[64] T93.34.
[65] T94.19.
[66] T94.31-.33, T95.23-.24.
[67] T96.15-.22.
The video itself is far more telling. Reproduced below is a transcript of this event. Although the transcript is not in evidence as such, its accuracy is not disputed by counsel for the defence, so it is reproduced in full below:[68]

[68] Exhibit P4B.

Transcript of conversation between DT, DG and MM.
DT
He said,     Recording. Go hard, right up there hard. That’s perfect photo. Harder, harder, go up there further. Hard real hard [DG], push it right in hard. Spread your fanny open more [MM]. That’s it.
DG
He said,     That’s coming.
DT
He said,     Yeah keep going then. The further her legs are open the more you’ll see. Keep doing it. I’m trying to get a photo of yous both in it. Keep going harder. Go real fast [DG] so it goes fast on the video. You’ve got your cap on, it’s puttin a shadow over her fanny. Take your cap off for a minute with your other hand. Take, no leave your finger in there, and take that for a minute cos you’ve got a shadow over her fanny, I’m not getting a good picture. Right go hard now. Gonna try and get you doing it. Go on go on, oh yeah that’s a good one. Go real hard, harder. Now tryin to get one full on while your fingering her. Hang on look at that. Go faster and you’ll see it you’re doing it to her. That looks all right hey.
DG
He said,     Yeah
DT
He said,     Look at her fanny go. Liking it, liking it
MM
She said,    Hmm
DT
He said,     Go in harder [DG], go in further with your finger, as far as you can go in. Is that in your fanny.
MM
She said,    Hmm hmm.
DT
He said,     Twist around. Go on now play with the top of her fanny as well. Tickle her fanny there so I can see it. Yeah that’s it. Go on tickle it around, wriggle it around as you’re doing it. Okay take that hand away again, go on. Look at that, you can see what you’re doing to her on the camera. Go harder go on. Make her cumin and see if I get any cum on the photo. Real fast. …… like you’ve done before remember. Yeah go on hard hard. Look at that full on. Faster so she cums, you can hear it coming in and out. Nice.
MM
She said,    Hmm
DT
He said,     Yeah she’s loving it. The way she’s laying it’s good ay. Need to shave all your thing, show touch it [DG] show her where it’s all hairy and it needs shavin so when she has a bath she knows where to shave. Look at all the hair growing there, show where.
DG
He said,     Yeah
DT
He said,     Yeah. Tell her to shave all that. You tell her.
DG
He said,     Shave it.
DT
He said,     Tell her next time I come I want it all shaved nice. Don’t play with your fanny. If you want it played with [DG] will play with it. You want to play with it as well. Yeah she wants you to play with the crack here as well. [DG] she wants you to tickle in there, get you that finger, the middle finger yeah and right in the middle there, look here go in there, get in between her crack. Make her crack open a bit. Yeah like that, rub it around in there and finger her at the same time. Yeah she’s loving that. You make her clit stand up. Oh yeah like that, look. You know cos she’s laughing look.
This video is even more telling when one considers not what it shows, but what one hears. DT can be heard consistently barking instructions and encouragement at DG, egging him on, clearly engrossed in his own patent enjoyment. There are unequivocal references to better positions and posture to enhance the quality of filming he was obviously taking at the time on his mobile phone.
Count 3 – Rape cunnilingus
The evidence supporting the central allegation on this count comes once again from DG, supported by the much shorter separate video found on the accused’s telephone. The evidence given by DG on this topic was closely interrelated in point of time in respect of that given on count 2.
When questioned in-chief ‘what else’ did he do, he said ‘I licked her … in the pussy … on the vagina’,[69] and that he did so ‘for our enjoyment’.[70] He added that he was supervised by DT to the extent that he ‘just kept an eye on us making sure everythings ok’. DG considered MM was happy with it in the same way described earlier.[71] Once again, despite its relative shortness, the video of this event is revealing insofar as it demonstrates the extent of encouragement and degree of importuning employed to have DG persist with this kind of sexual activity.
[69] T84.30-.35.
[70] T94.36-95.1.
[71] T95.27-.33.
The transcript of this aspect of the event reads as follows:
DT
He said, Take your hat off [DG] so I can get the. Suck on it real hard, hang on where is she. There, there. Hang on wheres the fuckin yeah. Go down a bit. Really suck on it. Alright take your. Stay there. Gonna tape your fanny with all juice on it. All horny cos [DG] keeps lickin it look. That’s her clit.
Counts 4 and 5 – Indecent filming
The evidence of filming is undeniable. Nor can there be any doubt the respective acts of digital penetration and cunnilingus were indecent according to any contemporary standard of right minded persons: R v C,M.[72] The critical issue is confined to the question of consent. The evidence of DG about that was summarised earlier.
[72] [2014] SASCFC 116, [19], [29].
Count 6 – Attempted rape
The evidence in relation to this count comes solely from the witness JP, a 19 year old at the time of giving evidence. He was in receipt of a Centrelink benefit for about three years and now enrolled in a TAFE course at its City Campus, studying education and development. He had an unsettled life before moving out of home at the age of around 13 or 14. He came to live with a man who became his carer, the witness RG, at an address a few houses down in the same street as the accused. This was where he lived in November 2013, when he was 16 years of age.
During this time JP came to know the accused ‘by walking past his house on occasion and being introduced’, and with whom he was ‘friendly’ and ‘polite’, as ‘someone in the neighbourhood’.[73] JP had in fact visited DT ‘maybe once, twice’ and saw him from time to time in the street. It was through DT that he met MM and her father.[74] He had not been in the accused’s house beforehand, although he understood MM stayed there ‘part of the time’.[75]
[73] T147.6-.9.
[74] T147.13-.25.
[75] T148.17-.24.
On a day in late November 2013, he actually went to DT’s home as a result of a telephone call from him. During this call DT at first asked RG if JP ‘wanted to come over for five minutes’.[76] Although he was on his way to see his girlfriend, JP ‘ended up saying yeh, I’ll stop down for 5 minutes’, which he proceeded to do. Once inside he deposed to the fact that DT offered him a beer, which he accepted. The accused later rang MM’s father asking to speak to her and if she wanted to come over.[77] JP heard the accused say to MM on the telephone ‘are you coming or not?’ and ‘if you don’t want to do it don’t bother coming’.[78]
[76] T150.7-.14.
[77] T152.7-.12.
[78] T153.10-14.
He described the accused showing him a video of MM ‘getting licked out and fingered’, which he proceeded to watch for a number of seconds before passing it back to DT.[79] On being asked ‘do you want to do that to her’ and pressed ‘would you like to do that to her’, he ‘sort of brushed off the comment and went to the dining area’.[80] JP claimed to have at first ‘brushed off the comment’ and later that he was ‘shocked’ by what had been said to him, which he did not really take it seriously.[81] Whilst sitting in that area JP deposed that MM walked in and the accused demanded of her ‘pull your pants down’, and inquired of her ‘do you want him to lick you out or finger you or fuck you’, as she stood and ‘sort of giggled, you know didn’t reply …’.[82] Following this exchang, DT called JP by name into the spare bedroom where MM had her legs spread apart without pants on, lying on the bed.[83]
[79] T153.24-25.
[80] T155.23-28.
[81] T155.23-.26, T157.8-.16
[82] T155.29-.38.
[83] T156.2-.8.
JP gave evidence that he did not want to embark on any of the proposed things ‘No, I’ve got a girlfriend’, and he further maintained that the accused indicated a desire to record these events if they took place.[84] He added that he ‘felt forced into it, I didn’t really know what to do, I was completely shocked …’, and that whilst he was asked to do those things the accused was rubbing his groin area with his hand outside his clothes.[85] JP described the expression on MM’s face as she was lying on the bed as ‘lifeless … just like a doll really … she was just lying there’.[86] He claimed to be so shocked and disgusted that he threw up in a toilet, then walked back towards the bedroom and announced ‘I’ve got to go’ and as he was leaving through the front gate, his carer RG walked in but he continued to head to his girlfriend’s who lived nearby.[87]
[84] T156.18-.29.
[85] T156.26-157.1.
[86] T157.2-.7.
[87] T157.8-.16.
The evidence of RG supports that of JP in some material respects and in others tends to contradict it. RG confirmed the general nature of their relationship with the accused as an acquaintance in the area, and of meeting MM on occasions. He added that on one occasion the accused raised with him the prospect of JP and MM being ‘good for each other’, and that ‘it could be arranged for her and (JP) to get friendly’.[88] RG made it clear to DT that this was ‘not to happen’.[89]
[88] T130.8-.10.
[89] T130.31-.34.
RG confirmed receiving a telephone call from the accused asking to speak to JP, in which he said to RG ‘I should get JP in to see him to say hello’. His understanding was that although JP left soon after this call, he was heading for his girlfriend’s.[90] He deposed to the fact that later that day he went to the accused’s home, knocked on the door and waited, until MM answered. Upon going inside he noticed the accused and JP sitting at the dining room table drinking beer.[91] He claims to have given JP ‘a dirty look’ whilst detecting ‘there was something wrong’.[92] JP soon left, but not before the accused had volunteered ‘I know you’re mad about him being here but we’ve done nothing wrong’.[93]
[90] T132.2-.15.
[91] T132.31-133.2.
[92] T133.3-.10.
[93] T133.14-.16.
After JP left, RG was taken outside where the accused inquired of him whether he had seen MM’s underwear on the clothes line and ‘asked me if I wanted to sniff them’, causing RG to become ‘very upset’ and to promptly leave the premises as well.[94] Four or five hours later JP returned home. At this time RG detected his behaviour to be ‘very weird’ and ‘said he needed to talk to me about something’.[95] Following a discussion between them, RG contacted the Golden Grove Police Station.[96] This account is mere evidence of narrative and was not tendered as complaint evidence as such.[97]
[94] T133.8-.37.
[95] T134.4-.9.
[96] T134.4-.25.
[97] Pursuant to s 34M of the Evidence Act.
Some indefinite time later, the accused rang RG demanding ‘JP is not allowed in the street anymore otherwise [I’ll] bash him’ and he made threats to the effect ‘that he was going to get Fat Boy to fix us up’, ‘to put a bullet in our heads’, and ‘… even better, I’ll wait until I go to trial, I’ll buy a gun and I’ll come and shoot you both myself’.[98] These threats are of course the core allegations in respect of count 7, to which the accused pleaded guilty at the commencement of the trial.
Psychological evidence
[98] T135.3-.20.
Mental disability – MM and DG
The prosecution tendered as part of its case, two reports of the psychologist Mr Broomhall, one dated 7 November 2014 with respect to MM,[99] and one of 26 June 2015 with respect to DG.[100] These were prepared at a time when the rape counts alleged the compulsion of DG to commit the offences, without DG’s consent.[101] The difference between the original Information and that on which the accused was arraigned on 18 May 2016, is that each now alleges the compulsion of MM to commit the respective acts of penetration, without her consent. In each instance the lack of consent is based upon an incapacity to confer consent in the context of the entire circumstances. Given the revised charges, it is not strictly necessary to delve into the reports with respect to DG, although certain references will of necessity be made to them at times, and for the purpose of assessing the evidence on count 5.
[99] Exhibit P3A.
[100] Exhibit P3B.
[101] Information dated 6 October 2015.
Mr Broomhall saw MM in late July 2014. He considered her to meet the DSM-IV criteria for an intellectual development disorder, with general intellectual functioning in the 0.1^st percentage. He described this as an ‘extremely low range compared with aged peers’ and therefore rated her intellectual disability at the moderate level of severity.[102] The assessment for such a diagnoses included general mental abilities, impairment in every day adaptive functioning, involving reasoning, problem solving, planning, abstract thinking, judgment learning from instruction and ‘experience and practical understanding’ aspects, as well as verbal comprehension, working memory, perceptual reasoning and abstract thought.[103]
[102] Exhibit P3A, pp 8.9-9.41.
[103] Ibid.
The defence called the psychiatrist Mr Balfour. He prepared reports with respect to MM and DG on 25 April 2016,[104] and 10 May 2016,[105] respectively. Mr Balfour equally diagnosed intellectual disability at the moderate level of severity with respect to MM. Like Mr Broomhall, he did not consider her or DG for that matter, to be totally incapable of conferring consent to sexual intercourse.[106]
[104] Exhibit D8.
[105] Exhibit D9.
[106] Exhibit D8, pp 23.5, Exhibit D9, p 20[5], T218.9-219.23, T355.1-.8.
It was clear from tests conducted in December 2005 when MM was aged 12, that she then ranked in the 0.1 percentile for verbal comprehension, perceptual reasoning and working memory, and that her overall level of intellectual functioning was in the less than 0.1^st percentile, that is 99.9 percent of her similarly aged peers performed at high intellectual levels.[107] The psychiatrists were more or less at one in placing her IQ in range in the 0.1^st, in the case of Mr Broomhall at 52 with a 95 per cent confidence level between 49-57,[108] and in the case of Mr Balfour of between 55-69.[109] Both agreed the accepted ‘cut off’ level for intellectual disability is below 70 IQ points, that is to say when compared to peers of a similar age, 99.9 per cent functioned at the higher cognitive level.[110]
[107] Exhibit P3A, p 8, Exhibit D8 p 19.
[108] Exhibit P3A, p 7.36-.38, T176.3-.12.
[109] Exhibit D8, p. 19.8.
[110] T176.12-.2 Mr Broomhall, T305.30-.36, Mr Balfour.
Both coincidently formed similar views with respect to DG, placing him at much the same level of intellectual disability as MM. Mr Broomhall assessed DG to be ‘in the extremely low range’,[111] whereas Mr Balfour assessed an intellectual disability of ‘mild severity’ at the ‘level of intelligence in the bottom 1 percent of the general population for his age group’.[112] DG’s IQ was assessed by both as laying between the range of 59-67.[113]
[111] Exhibit P3B, p 8.
[112] Exhibit D9, pp 16 and 17.
[113] Exhibit P3B, p 8.1-.4, Exhibit D9, pp 16.9-17.1, respectively.
MM and DG were born in 1993, and were aged 20 as of November 2013. The psychiatrists initially expressed opinions, as they were asked to, on the issue of consent based on s 46(3)(e) CLCA criteria, that is ‘mental or intellectual condition or impairment’, rather than focussing directly on the wider question of ‘free and voluntary’ agreement to sexual activity, as expressed by s 46(2) of the CLCA. Remarkably, neither was shown the transcripts or the video of the two respective events constituting the rape charges, which as noted earlier, are significant in elucidating the precise circumstances and the precise manner in which the alleged offences took place.
Capacity to consent – an overview
The opinions expressed by both experts, are more than useful in identifying the kinds of factors properly bearing upon the question of consent. To begin with, Mr Broomhall referred to research undertaken in 2000 into the criteria required for determining capacity to consent in sexual relationships with people of intellectual disability.[114] That research indicated the most important aspects for demonstrating such capacity, were that the individual can say or demonstrate ‘no’, knows having intercourse can result in pregnancy, has the capacity to make an informed choice when given options, knows that having intercourse or other sexual relationships can result in disease, has the capacity to differentiate between appropriate and inappropriate times and places in which to engage in intimate relationships, can recognise individuals or situations which might be a threat to him or her, and has the capacity to stop behaviour if another person tells him or her ‘no’.[115]
[114] Kennedy and Niederbuhl, Establishing criteria for sexual consent capacity (2001), American Journal of Mental Retardation, 106(a), 503-510.
[115] Exhibit P3A, p 10.42-.44.

Mr Balfour employed not dissimilar criteria when expressing the view that:[116]
[116] Exhibit D8, p 21.
Intellectually disabled individuals are often treated as children, in a patronising manner, and consequently viewed as being asexual by individuals of normal intelligence. Consequently, intellectually disabled individuals are frequently denied opportunities to develop socially sanctioned and appropriate strategies to have their sexual needs met. The end result is that their sexuality is often denied; and they may act in an aberrant manner, or engage in invasion behaviours as a form of sexual displacement activity. Their denied sexuality often makes them vulnerable to sexual exploitation by other individuals of normal intelligence who may indoctrinate them into sexually inappropriate behaviours.
Intellectually disabled individuals experience strong adult sexual passions and libidos, but they frequently lack the intellectual ability to fully comprehend their sexual feelings and to resolve them in a socially acceptable manner. Intellectually disabled individuals are conceptually poorly equipped to deal with complex sexual issues such as:
.Understanding the subtle social nuances and complex rules of courtship behaviour that may or may not lead to sexual behaviour.
.Understanding the boundaries of interpersonal space and social roles between individuals, and when consent has been given to cross these boundaries;
.Understanding that the same social behaviour in different contexts may have different significance and meanings;
.They can misinterpret friendship and positive social attention as being a sign of sexual interest, availability, receptiveness, or invitation.
.Their ability to consent to sexual activity with others who make sexual advances towards them is often problematic.
.They often have a limited rudimentary knowledge regarding the mechanics of sexual intercourse and reproduction. Consequently they may be vulnerable to contracting sexually transmitted diseases, or having unwanted pregnancies and giving birth to children they are intellectually incapable of parenting.
Mr Broomhall concluded MM demonstrated sufficient understanding of the nature of sexual intercourse, albeit at a ‘very basic level, that sexual intercourse could result in pregnancy, that she was aware sexual intercourse could result in disease and was able to differentiate between and inappropriate times and places to engage in sexual relationships, albeit at a ‘rudimentary and concrete level’.[117]
[117] Exhibit P3A, pp 9.43-10.29.
Mr Balfour points out that MM obtained formal sexual education at a special school and clearly understood the basic biology of reproduction and sexual intercourse, the function of genitalia, that MM understood it could result in pregnancy and in fact takes oral contraceptives, so he considered she had the necessary intellectual capacity to consent to sexual activity, taken in isolation.[118] This is not a situation then as it was at common law, of mental deficiency of such a degree as to preclude the capacity to consent at all.
[118] Exhibit D8, p 22-23.
In respect of the mental deficiencies and vulnerabilities of each MM and DG, there is really no material difference of substance between the two psychologists. So far as experience, learning and qualifications are concerned, there is little to separate them either, except only perhaps that Mr Balfour appears to have more experience in assessing the capacity of intellectually disabled people to consent to acts of sexual intercourse. Both are highly regarded and experienced psychologists whose reports are frequently uncritically received in the criminal courts of this State. Neither were challenged on grounds of inexperience or expertise.
Capacity to consent – the context
Both experts considered in general terms that intellectually disabled people were vulnerable to sexual exploitation. For example Mr Broomhall understood this to be the case ‘especially when approached by a person who renders services to them’.[119] In the case of Mr Balfour this occurred when ‘individuals of normal intelligence … indoctrinate them into sexually inappropriate behaviours’.[120]
[119] Exhibit P3A, p 10.
[120] Exhibit D8, p 21.
As noted earlier both Mr Broomhall and Mr Balfour were instructed to express opinions as to the capacity of MM to consent to intercourse. Mr Broomhall concluded she was:[121]
… by nature of her impairment from intellectual disability incapable of freely and voluntarily agreeing to sexual activity alleged in the current charges.
He expressed a similar view of the capacity of DG.[122] Having expressed this tentative view on the basis of the material he was supplied with, he acknowledged it was expressed with specific reference to the circumstances as related to him and that it was an opinion ‘difficult to state … in black and white terms …’.[123] Indeed he properly made the point that the ultimate determination was for the court to make.[124]
[121] Exhibit P3A, p 12.18-.20, T89.31-.36.
[122] Exhibit P3B, p 12, T189.31-190.12.
[123] T227.9-.35.
[124] Exhibit P3A, p 9.11-.13, T240.14-.38.
In the case of each complainant, Mr Balfour initially formed the opposite view. Once again he rightly deferred to the court in reaching that conclusion with respect to MM,[125] as he did with respect to DG.[126] Clearly, it is ultimately a question of fact for the court to determine, based on the underlying facts it is prepared to accept and act upon and from inferences properly drawn therefrom. An examination of the case law discussed later with respect to the capacity of intellectually disabled persons to consent to sexual intercourse, supports that view of matters.
[125] Exhibit D8, p 23 [4], T198.29-199.3.
[126] Exhibit D9, p 20, T225.4-.24, T304.34-.38, T335.19-336.2.
Counts 2 and 3 – capacity to consent
Unlike the charge of unlawful sexual intercourse with a person with an intellectual disability brought under s 49(6) of the CLCA, the charges of rape under s 48(2)(a) are expressed in conventional terms, in that each particularise intercourse without MM’s consent. Viewing the videos and reading the transcript, reveals that it is impossible to conclude that MM did not consent to those two acts, based on those materials alone.[127] To outward appearances ‘consent’ is quite evident. So much appears from such exchanges as ‘that looks alright’, ‘liking it’, ‘she’s loving it’, ‘she wants you to …’, ‘she’s laughing’, and like expressions. There is no hint of protest, or of objection, although of course physical or verbal resistance are not necessarily components of the lack of consent: R v Hinton,[128] R v Laz.[129]
[127] Exhibits P4A and MFI P4B respectively.
[128] [1961] Qd R 17.
[129] [1998] 1 VR 453, 460.
Accordingly, if there is to be proof of the lack of consent, it must find its source in the evidence of intellectual disability and the prevailing circumstances at the very time of sexual activity. At common law, if a jury was satisfied a female was incapable of expressing consent to sexual intercourse, the accused would be guilty of rape nevertheless: R v Fletcher,[130] and R v Fletcher.[131] For all that, a conclusion that a person was an ‘imbecile’ or even an ‘idiot’, did not necessarily result in incapacity to consent: R v Abbott.[132] The common law was however originally pre-occupied with total incapacity to confer consent: R v F,[133] R v Howard.[134]
[130] (1859) Bell CC 63.
[131] (1866) LR 1 CCR 39.
[132] [1984] 1 Qd R 342.
[133] (1910) 74 JP 384.
[134] (1966) 50 Cr App R 56.
The special report of the Criminal Law and Penal Methods Reform Committee of South Australia ‘Rape and Other Sexual Offences’ of March 1966, recommended the change from unlawful carnal knowledge of ‘an idiot or imbecile’, to ‘sexual intercourse with a person known to the offender to suffer from mental defect or disease which renders him or her … incapable of giving a true consent to sexual intercourse’.[135] The earlier section was modelled on the provisions of s 5(2) of the Criminal Law Amendment Act 1885 (Eng), which made it an offence to have unlawful carnal knowledge ‘of any female idiot or imbecile woman or girl, under circumstances which do not amount to rape…’. As Grantham J observed in R v F,[136] of the arcane common law:
It is strange that the Legislature should have used two words of that character, but I think they are used advisedly. I think the words are intended to refer to a person incapable of giving consent. It was found in many cases that persons sexually assaulted were idiots or imbeciles, and thereby incapable of giving consent or resisting; … Accordingly the Act includes the ‘idiot’ or person who from birth has had no mind, and the ‘imbecile’ or person who, having once had a mind of some kind, owing to decay or other mental or physical causes, ceases to have a mind. I think it was intended to limit the protection of the Act to those two classes who can neither consent nor resist.
[135] Para 10.2.
[136] (1910) 74 JP 384, 384.
However in R v Colgan,[137] the Court of Criminal Appeal recognised a more flexible principle, considering that earlier judicial interpretation was unduly favourable to an accused. The court held mental defectiveness falling short of those two rigid categories, if so pronounced as to be incapable of managing themselves or their affairs ‘… should be adopted as a satisfactory guide to jurors in this State in cases such as the present’.
[137] (1958) 59 SR (NSW) 96, 98-99.
The next step in the progress of the common law came in R v Morgan,[138] in respect of a charge of the rape of a woman ‘mentally retarded to a marked degree’:
… 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 act 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 connexion 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 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.
Accordingly, if the prosecutrix has knowledge or understanding of what the act comprises, ie the fact of penetration, and of its character in the sense above mentioned, then she has all that the law requires for capacity to consent. That knowledge or understanding 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.
[138] [1970] VR 337, 341.
A similar construction was applied in R v Abbott,[139] by holding that the law seeks to protect females who ‘may be unable to comprehend or appreciate the nature of the act of sexual intercourse’, as ‘somewhat too favourable to the defence’.
[139] [1984] 1 Qd R 342.
The decision in Morgan, was revisited in R v Mobilio:[140]
What was said by this court in Morgan … indicates that whether or not a woman was able to appreciate the morality of the act is one of the considerations which could be taken into account in deciding whether she had the intellectual capacity to give a real consent to sexual intercourse. Situations encountered in the cases show that a woman's appreciation of the morality of a proposed act will sometimes turn on her knowledge of a man's purpose in proposing an act of intercourse. Although that statement by the court was not strictly necessary to the decision and was on a subject which does not appear to have been argued, it was made by way of guidance to trial judges and carries its own persuasive weight.
In our opinion the passage quoted from the judgment of this court in Morgan is to be understood on the background that the law requires that a woman must understand the nature and character of sexual intercourse before she can be capable of consenting to it, but the fact that she does understand that does not necessarily establish her capacity to consent. In addition to her knowledge of the nature and character of the act her capacity to make a decision may be relevant. A jury might think that a woman whose intellect was insufficient to enable her to make a refusal of consent or to know that she had a right to refuse consent, lacked the capacity to consent despite her understanding of the nature and character of sexual intercourse: see R v Lang (1975) 62 Cr App R 50, at p52 and Howard's Criminal Law, 5th ed, (ed Fisse), p180; cf R v Roden (1981) 4 A Crim R 166. In deciding whether a woman who knew the nature and character of an act of sexual intercourse had the capacity to give a real consent to it, a jury could have regard to such things as her capacity to appreciate that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy and that a decision to consent or not involves questions of the morality or social acceptability of the conduct. We think the court is to be understood as meaning that in saying that those things are not outside the purview of the jury.
[140] [1991] 1 VR 339, 351.
This formulation was affirmed in R v Eastwood,[141] and again in R v RWS.[142] The basic facts in RWS,[143] were that two complainants each had a significant intellectual impairment. S, who was 33, had an IQ of 54. T, who was 36, had an IQ of 64, well below the cut-off point for intellectual disability. This decision concerned s 36(a) of the Crimes Act 1958 (Vic). This provided for relevant purposes:
[141] (1998) 114 A Crim R 448, [32].
[142] (2012) 227 A Crim R 200.
[143] Above.
36 Meaning of consent
For the purposes of Subdivisions (8A) to (8D) consent means free agreement. Circumstances in which a person does not freely agree to an act include the following—
…
(b)the person submits because of the fear of harm of any type to that person or someone else;
…
(e) the person is incapable of understanding the sexual nature of the act;
(f)the person is mistaken about the sexual nature of the act or the identity of the person;
…
In RWS the court held a person who understands the sexual nature of the act may nevertheless be incapable of freely agreeing to it, if that person’s diminished intellectual capacity precludes making a decision to refuse, or from understanding the right to refuse or consent to sexual acts. As to the interpretation of the Victorian provision the court unanimously held (footnotes omitted):
[18] As will appear, the argument in the written case in support of the abandoned grounds focused particular attention on s 36(e) of the Crimes Act. As set out above, that provision has the effect that a person’s inability to understand the sexual nature of an act renders that person incapable (for the purposes of the offence provisions) of freely agreeing to that act. Decisions of this Court have made clear – as the language of s 36 itself makes unambiguously clear – that the situation described by s 36(e) is but one of the circumstances in which there will be a lack of free agreement for the purposes of the sexual offence provisions in the Crimes Act.
[19] Importantly for present purposes, as the court’s email to counsel pointed out, the decisions of the Appeal Division in R v Mobilio and of the Court of Appeal in R v Eastwood both held very clearly – indeed, explicitly – that a person who understands the sexual nature of the act may nevertheless be incapable of freely agreeing to it, if that person’s diminished intellectual capacity precludes her from making a decision to refuse, or from understanding that she has a right to refuse, consent to sexual acts.
…
[22] The Crown case at this trial relied on that very distinction. That is, the Crown maintained that, although these complainants understood the nature of the sexual acts in which they took part, they did not have the intellectual capacity to refuse consent to a person perceived by them to be in authority over them, and that the applicant was such a person. In answer to a question from the judge, the Crown’s expert witness, Mr Jones, said quite clearly that in his opinion S “understood what the sex act was”. Nevertheless, in his opinion, S was:
unable to exercise informed consent to sexual activity with a male who she believed to be in a position of authority.
Relevant aspects of the summing up the court in RSW considered to be ‘entirely appropriate’, may be condensed as follows:[144]
[144] Culled from RWS at [29], emphasis supplied.
[Counsel for the Crown] put to you that both [S] and [T] do not have the psychological capacity to exercise informed consent in relation to sexual activity with a male that she understood to be in a position of seniority or authority to her because their intellectual state is such that they do not have the capacity to exercise a free choice to say yes or no.
…
the prosecution invite you to infer from the evidence, for example, in the case of [S], that she was a person who was unable in the circumstances she found herself in to give free agreement. Same point prosecution contend for is applicable to [T]. Facts would have to be established beyond reasonable doubt on the evidence in order for you to reach that conclusion.
...
If there is some other reasonable explanation or basis, you would find the accused not guilty.
…
In determining whether [S] did not freely agree to be sexually penetrated, you must consider all the relevant evidence including what she is alleged to have said and done at the time of the alleged penetration ... You can also consider what she did not say or do at the time of the alleged penetration.
…
Mr Jones’ evidence … when asked how he formed the view that [S] was subordinate to authority he referred to the way she responded in the VATE tape and you will recall it was his view that [S] was incapable of giving free consent or free agreement because of her intellectual disability when in the presence of a person senior to her or a person of authoritative character to her. His evidence was in his assessment that was the case with [the accused] and he relied upon the evidence [S] gave in the VATE for that.
In the result the appeal Judges in RWS observed ‘there is no prescribed list of matters to which regard may, or may not ‘be had’, and there is no ‘prescription … as to how a jury is to be directed’, the question of capacity to consent is ‘a matter of common human understanding … informed … by the expert evidence but, in the end, it was for [the jury] to decide’.[145]
[145] Ibid [30], [32].
Section 46 of the CLCA inserted by s 5 of the Criminal Law Consolidation (Rape and Sexual Offences) Act 2008, is if anything, wider than the provision considered in RWS.[146] It provides:
[146] Above [29].
46—Consent to sexual activity
(1)In this section—
sexual activity includes sexual intercourse.
(2)For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.
(3)Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—
…
(e)the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or
(f)the person is unable to understand the nature of the activity;
Counts 2 and 3 – analysis
Consent
Sections 46(2), and (3) of the CLCA plainly direct attention to the free and voluntary nature of consent, at the very time of and in the very circumstances the sexual activity takes place. The focus of the enquiry remains the free and voluntary agreement to engage in that activity. This inquiry is not dependent on the existence of mental or intellectual impairment, although the latter is relevant to it. The circumstances in which a person is taken not to consent delineated by s 46(3), are non-exhaustive as s 46(3) makes express in the words ‘(W)ithout limiting subsection (2)’. It is of singular importance to recognise, as the Victorian Court of Criminal Appeal emphasised in R v RWS,[147] that a person may be incapable of freely agreeing to sexual activity in some circumstances, even though capable of understanding the nature and consequences of the sexual activity involved.
[147] Above [12].

As stated before, the question of the capacity to consent is one for the jury – or in this case for the Judge alone – to decide from the proven facts, and inferences properly drawn therefrom, informed where applicable by expert evidence. A number of considerations informing the capacity to consent in the case of a person with an intellectual disability, emerge from the evidence given in this case, which might be conveniently brought together as follows.
i. Intellectual incapacity
The extent of MM’s limited intellectual incapacity is documented above. She meets the criteria for intellectual disability under the DSM-V criteria, assessed at a moderate level of intellectual impairment with accompanying defects in cognitive functioning, verbal reasoning, abstract reasoning and working memory. Of this situation, Mr Broomhall made this general observation:[148]
It is well documented within the field of intellectual disability that people with intellectual disability are often less free to make choices about their lives than other people “… as a result, individuals with intellectual disability become accustomed to following instructions without question. Some people with intellectual disability have a great desire to please and they become particularly adept at discerning what response is wanted by another person. These factors separately or in combination lead to an increased risk that in sexual matters persons with intellectual disability may be more compliant with instructions from others than would be their same age peers”.
[148] Exhibit P3A, p 10.32-.39.
Mr Broomhall considered MM’s ability ‘to make informed choices when given option would be impaired by her poor abstract reasoning skills’,[149] and her ‘ability to recognise individuals or situations which might be a threat to her was compromised by her intellectual impairment and trusting nature’.[150] He expanded on this aspect of the matter later in the same report:[151]
Persons with intellectual disability can also be easily manipulated because they may lack the ability to identify situations of risk. I believe [MM’s] ability to identify potential situations of risk was significantly compromised by her intellectual disability.
The potential for manipulation to occur could only have intensified by the fact that DT remained in the bedroom, all the more so as he repeatedly instructed DG and emphatically urged him on, for example ‘keep going’, ‘go real fast’, ‘go hard’, ‘in further’, ‘real hard’, and so on.
[149] Exhibit P3A, p 10.22-.24.
[150] Exhibit P3A, p 10.31-.32.
[151] Exhibit P3A, p 10.45-11.3.
Dr Balfour equally shared the view that intellectual disability often makes such persons ‘vulnerable to sexual exploitation by other individuals of sound intelligence who may indoctrinate them into sexually inappropriate behaviours’,[152] and that both MM and DG were ‘vulnerable individuals’, ‘overly trusting’ and ‘easily manipulated by unscrupulous others’.[153]
[152] Exhibit D8, p 21.3.
[153] Exhibit D8, p 22.8.
ii. Carer relationship
This aspect of the relationship relates to the degree of dominance and control exercised by the accused derived from the position of informal carer of MM. Objectively speaking he was very much in a conflict of interest situation, one in which he was not impartial. This circumstances gives rise to the very real potential to exploit that relationship, thus compromising his capacity to adhere to the standards expected of carers, even informal carers. To quote Mr Broomhall:[154]
Further issues of dependency impact this vulnerability in the context of provision of services by carers. A person with an intellectual disability is often dependent on others in a variety of ways and because of this they are vulnerable to sexual exploitation, especially when approached by a person who renders services to them. If they resist an advance they risk the withdrawal of those services; services which may be essential to their health and wellbeing. Persons with intellectual disability can also be easily manipulated because they may lack the ability to identify situations of risk.
Mr Balfour expressed a not dissimilar view:[155]
[DT] was in a position of trust and authority that he has exploited to satisfy his own prurient desires. If [DT] were a registered salaried carer, his role boundary violation would have resulted in him being immediately dismissed, and possible criminal charges laid. [DT] has clearly abused his position of power over them.
Mr Balfour considered this relationship placed the accused ‘in a position of trust, authority and influence’ over her.[156]
[154] Exhibit P3A, p 10.41-11.2.
[155] Exhibit D8, p 22[5], 23[1].
[156] Exhibit D8, p 22 [5], T351.17-352.20.
The very nature of the relationship between DT and MM was therefore one in which he became a trusted authority figure upon whom she relied. In that respect it was the very kind of relationship that called for her ‘protection from those who would seek to take advantage of her for sexual gratification purposes’.[157] Subjectively speaking, the day-to-day interactions were characterised by control over MM. RG had noticed in his exchanges with them that DT ‘used to direct her … in conversation … she was led on what to say and what to do’.[158] More than that, DT admitted to him that he controlled her and her father’s bank accounts (the father also suffered from intellectual disability, hence the need for respite care) and that he controlled their spending, had access to their money and would discipline her.[159]
[157] Exhibit P3A, p 11.39-.40.
[158] T127.16-.23.
[159] T127.24-129.26.
iii. Dependency relationship
Although interrelated with the carer relationship, the focus of this attribute of the entire arrangement, is on the cared for rather than the carer. The intellectually handicapped who are cared for, are inherently vulnerable as they are inclined to do as they are told, develop a trusting nature towards the carer, and a tendency to please the carer, leading to an imbalance, rendering them vulnerable. Mr Broomhall described this as ‘a relationship … which involved a carer, teacher or authority figure rather than a relationship of equals …‘.[160] He added that MM:[161]
… would not be aware of these risks and would be trusting of a person who was seen as trusted and a carer, and would become easily manipulated in this regard.
[160] Exhibit P3A, p 10.19-.21.
[161] Exhibit P3A, p 11.13-.14.
Thus MM would, to quote Mr Broomhall again, ‘be more likely to follow the direction of those whom she trusted …’,[162] and became ‘accustomed to following instructions without question’, to ‘have a great desire to please’ and ‘in combination lead to an increased risk that in sexual matters … [she] … may be compliant with instructions from others than would be their same aged peers.’[163] This he considered comes about because the intellectually vulnerable ‘may not have the common understanding that the average person of average intellect would have’.[164]
[162] Exhibit P3A, p 10.24-.25.
[163] Exhibit P3A, p 10.34-.39.
[164] T257.20-.26, Mr Broomhill.
iv. No prior sexual experience
At the request and with the consent of both counsel, permission was given for each to explore prior sexual relations as between MM and DG, as of sufficient probative value going to the questions of consent and MM’s understanding of sexual intercourse, pursuant to s 34L of the Evidence Act.[165] As MM did not give evidence, no such permission was required in her case.[166] It is not surprising that she did not give evidence in light of the interview referred to earlier with the police, in which she consistently indicated that she gave her consent. Mr Broomhall entertained considerable doubts about her attitude, having regard to the differences and inconsistencies in her statements and her motivation for taking that stance.[167] Mr Balfour considered there was ‘diverse motivation for protecting DT’, including fear of him and misguided loyalty.[168]
[165] T63.30-64.31.
[166] Pursuant to s 34L of the Evidence Act, T63.38-64.31.
[167] T210.31-212.8.
[168] Exhibit D8 p 19 [2], T348.36-349.20.
On the prosecution case there was no such previous sexual relationship. On the defence case there could have been. It is not proven there was any prior sexual activity apart from pecking and cuddling. DG’s evidence was to the effect that the subject events were the first time any sexual activity occurred.[169] Although DG expressed greater interest in MM than she in him, it had not progressed any further on his evidence.[170] They had therefore never been placed in a situation anything like this before. As Mr Broomhill expressed matters, they were ‘very innocent, socially naïve, impressionable, sexually inexperienced, and overly trusting’.[171]
[169] T83.34-84.15, T85.6-.7, T105.13-106.5.
[170] T83.34-84.17, T99.8-100.18.
[171] Exhibit D8, p 22 [4].
Mr Broomhill considered that insofar as DT instructed DG to perform acts of penetration and cunnilingus, it was behaviour of such a sexualised nature that ‘did not seem consistent with [MM’s] psycho sexual development’, in that normal sexual relationships and activities would progress over time by ‘exploring the boundaries of desires and sexual fulfilment’.[172]
[172] Exhibit P3A, p 11.43-12.5.
For his part Mr Balfour considered DT could have ‘embarked on a course of sexually directing [MM] … in the guise of being a sex coach/educator whilst video recording their intimate behaviour … [which] … is clearly unscrupulous, totally inappropriate, exploitative and disrespectful towards them’.[173]
[173] Exhibit D8, p 22 [5].
v. Age differential
Both MM and DG were aged 20 at relevant times. The agreed fact is that DT was 52, so there was a bare age differential of over 30 years. Mr Broomhall opined ‘given a significant age difference between them … the strong possibility arises that any relationship between [MM] and the accused was not one of equals but rather, one where the accused used his position to manipulate [her] into the alleged sexual activity’.[174] So much is really a matter of common sense. He enlarged upon this view in-chief:[175]
AThe relationship seemed to be more one of [DT] acted as carer and was more in a parental type role with [MM] rather than a romantic role of one where a romantic relationship had been formed.
QIn a parental role. You refer, among other things, to there being an age difference between them.
AYes.
QThat it was an unequal relationship and one in which he was able to manipulate it.
AYes. The idea of that assessment was to try and ensure that there was no breach in [MM's] ability to make her own choices about sexual activity. That was the intention of reviewing that part of the relationship.
QIf I take you to the final page, at the top of that page do you set out I think what you've explained a moment ago, that there didn't seem to be anything that was normal in the relationship, the everyday relationship that they shared as carer and the person cared for, and the sexual activity that was explained.
ASexual activity didn't seem to be a normal aspect of their relationship prior to this.
[174] Exhibit P3A, p 11.34-.37.
[175] T187.28-188.10.
Freely and voluntarily agrees - correlation of factors
The combination of the above matters – points (i) to (v), is a significant one, more than simply the sum of its parts. As Mr Broomhall observed:[176]
… it is important to understand that the issue of consent addresses the balance between protection of vulnerable persons and autonomy in their decision making and right to be a sexual human being.
One can only agree with the poignant observation of Mr Broomhall that the accused ‘breached her rights in regards to her sexual expression’.[177]
[176] Exhibit P3A, p 11.24-.26.
[177] Exhibit P3A, p 11.38-.39.
The phrase ‘power imbalance’ occurs in Mr Broomhall’s report with reference to an earlier quoted passage concerning the carer relationship.[178] When questioned on this passage in-chief, he responded:[179]
The difficulty in making informed choices in that situation is that the question is being put to her by a trusted carer, and literature and research and certainly my experience would show that a person with an intellectual disability can be very vulnerable to giving a socially acceptable response and one that is perhaps in line with what they believe the trusted individual wants to hear. So they’re less likely to assert their own opinion in that regard and that to my mind impairs her capacity to freely give consent in that situation.
Mr Balfour expressed a somewhat similar view during his evidence-in-chief, when asked about MM’s capacity to ‘consent to [DT] looking on while she was engaged in sexual activity with [DG]’ he responded:[180]
I believe that she has a concrete ability to consent to his presence, but again, bear in mind the issue, as I said earlier on, about the power imbalance, the role boundary violation that he is sort of a friend/carer and questions about his motives as to why he was helping as well.
[178] Exhibit P3A, p 10.18-.21.
[179] T182.29-.38.
[180] T335.5-.10, see also T314.1-.15 on this point.
Under cross-examination the following exchange between him and defence counsel transpired on this topic:[181]
[181] T349.29-350.29.
QAnd is that just, generally speaking, persons of that sort of condition are more vulnerable.
AYes, generally because of the power imbalance intellectually disabled people are more vulnerable socially.
QIs that potentially more so with a person involved as a carer.
AYes. That is one relationship that they may be more vulnerable.
QDid you say there may be another one.
AWell, there could be many relationships, they could have a job and have an employer who makes them work for 20 cents an hour, financially exploits them. There’s lots of things.
QBut those aren’t important to this matter, the focus is on [DT] and his role in relation to [MM].
AYes.
QWho was her carer.
AYes.
QAnd that -
ASo he was in a trusted relationship and in a position of authority and power of [MM] plus a family friend.
QIs that a compounding factor in terms of influence, he may have been able to exert over her, that is, both the fact that he was a family friend and a carer.
AYes, it is a compounding factor.
QWhat do you mean by that.
AWell, if he asks her to do something, is he asking in a role as a carer or is he asking in his role as a friend and is there a conflict of interest in the request that he’s asking of her.
QIs that fact that he was both a friend and a carer likely to have more of an influence on [MM] and the way she responded to him.
AShe clearly trusted him, yes.
The process of orchestrating DG to do what he did was, to adopt the expressions employed by Mr Balfour, ‘clearly unscrupulous, totally inappropriate, exploitative, and disrespectful towards them’, motivated by his own prurient desires.[182] It is very clear from the combination of considerations, in the context of the power of the video evidence, that DT abused his position of trust and authority in an exploitative relationship so as to manipulate an intellectually and situationally vulnerable young woman to satisfy his own perverted and prurient sexual desires, to such an extent that in the precise situation in which the sexual activity occurred, she was realistically denied the opportunity to freely and voluntarily agree to that activity.
[182] Exhibit D8, p 22[5]- 23[1].
To express the above conclusion in another way, there was such a marked power imbalance in the dynamic circumstances as between DT and MM, so as to effectively deprive her of the capacity to freely and voluntarily agree to the sexual activity at the time it occurred with respect to the two events charged on counts 2 and 3. That is in the sense that she was deprived of the capacity to confer ‘real consent’ by precluding her from making a decision to refuse and in understanding she had a right to refuse to participate in the sexual activity, had she wanted to.
Compulsion
The next ingredient constituting the offence of rape is that of compulsion. As seen earlier this requires proof of the control over MM to such an extent that it effectively prevented her from exercising freedom of choice. Since the court has just concluded MM was effectively deprived of the capacity to make the decision to refuse to participate in the circumstances, and that she did not understand she had that right, those conclusions are necessarily decisive proof of compulsion for the purposes of s 48(2) of the CLCA.
In that event it is therefore unnecessary to resolve the application to admit the discreditable conduct evidence of the events of the subsequent Tuesday. It is sufficient to observe that those events might well have occurred as DG deposed, however that conclusion is largely dependent on the antecedent conclusion that the rape counts are made out. In any case, the prosecution would struggle to demonstrate substantial probative value outweighing prejudice, simply because DT was not present, a significant difference from the proven course of events on the rape counts.
The mental element of rape
It is further necessary for the prosecution to prove that DT either knew or was recklessly indifferent to the fact that MM did not consent, as the case may be, pursuant to s 48(1) of the CLCA. For the latter purpose he is recklessly indifferent to the fact that she did not consent, if he was aware of the possibility she might not be consenting and decided to proceed regardless, or if he did not give any thought as to whether or not she was consenting before deciding to proceed, as required by ss 47(a) and (c) of the CLCA.
The accused’s intention can be inferred from what he said and did, but it is the intention of the accused himself which is in issue, not that of some hypothetical average or reasonable man: R v Olasiuk.[183] His knowledge, or alternatively the requisite state of recklessness, must be the only rational inference available on all the evidence: Pereira v DPP.[184]
[183] (1973) 6 SASR 225, 263.
[184] (1988) 63 ALR 217.
DT had known MM for a number of years and had close involvement with her in multiple ways examined earlier. As an informal carer, taking care of her finances, interacting with her in his house and arranging her transport, amongst several other activities, there can be no doubt that he was aware of her intellectual disabilities.
At the time of the two acts of intercourse, it appears clearly from several exchanges to be heard in the recordings, that DT actively encouraged DG to proceed, irrespective of MM’s consent. On this understanding of the course of events, it is clear beyond reasonable doubt that he proceeded regardless, to set up and then manipulate the encounter, so that at the very least he must have become aware of the possibility that she might not be consenting, and particularly in his capacity as carer, failed to take reasonable steps to ascertain whether she did in fact consent: s 47(b) CLCA.
Count 6 – Attempted rape
The core evidence in relation to the charge of attempted rape of JP, is in large part, reproduced above. JP gave evidence in a manner which did not give rise to any question as to his honesty, despite a past characterised by disadvantage. This did not however appear to have affected him in the way that disability did in the case of MM and DG. In fact his evidence was given in a consistent and clear manner, on the face of it.
If there is any difficulty in respect of the evidence on this count, it lies rather in his reliability than in his honesty. An initial criticism was made by defence counsel to the effect that the entreaty for MM to come over was not ‘frightening’, and that JP’s statement that ‘… once he says “do you want to come over”, it means you have to come over’,[185] was not credible. Taken literally, DT effectively gave MM an option whether to come over or not, and if not ‘don’t bother coming’.[186] This criticism however fastens too much on the sterile written word and fails to convey the manner in which these demands were made as deposed to by JP, as well as the nature of the recent sexual encounter beforehand, and especially how they came about.
[185] T153.18-.20.
[186] T153.9-.20.

The evidence of JP gains support from the fact he claims to have been shown a portion of the video on a Nokia smart phone, which in fact DT happened to possess and which so happened to contain videos of that kind.[187] There is more force in the criticism in light of his evidence that the video:[188]
… showed [MM] getting licked out and fingered and the way I like recognised that it was him recording it he said, he was standing in the background sort of standing over them and he goes ‘That’s not right, don’t make me show you how to do it’.
There was no single video showing both acts. There were in fact two separate videos, as noted earlier. Secondly, the latter statement ‘That’s not right … how to do it’, is not borne out by the video recordings themselves. Nothing like that is referrable to them. As against that, the fact that JP recognised DT and MM’s voice rather supports his evidence.
[187] T153.33-154.9.
[188] T154.12-.19.
Further criticism was made of the fact that JP claimed to be ‘disgusted’ and ‘sick’, and in fact vomited before leaving after confronting his carer RG briefly on the way out. This fits awkwardly with the evidence of RG, which was that when he arrived, JP was sitting at the dining room table drinking beer. This is hardly consistent with just having vomited in disgust.[189] Furthermore, RG claims to have given him a ‘dirty look’ at this time and that JP took ‘a couple of minutes’ before leaving, which is inconsistent with JP’s evidence that he left in haste.[190] The fact that alcohol was about the premises is supported by the earlier evidence of JP, that the accused prevailed upon MM’s father to purchase alcohol not long beforehand.[191] The evidence indicates progress into the spare bedroom to such an extent that if accepted, matters had sufficiently advanced to make out the element of attempt, as defined earlier in these reasons.
[189] T132.36-133.2.
[190] T133.2-.16.
[191] T151.30-152.2.
The evidence of the telephone threats to RG on 29 November 2014, are of no assistance to the prosecution with respect to this count, simply because it is not unequivocally referable to the events embraced by count 6: R v Ciantar.[192] For similar reasons, admission is equally of no assistance to the prosecution on counts 2-5, since it is not referrable to the issue of consent on those counts, nor is it referrable to the mental element on counts 2 and 3: R v Ciantar.[193]
[192] (2006) 16 VR 26, [75].
[193] Ibid, [85], [87].
There is however little evidence by way of compulsion, in the sense required at common law, for MM to have sexual intercourse with JP, apart from the question of intellectual disability. Putting that matter aside, there is equally nothing in the evidence to satisfy the definition of ‘compulsion’ in s 65A of the CLCA:
… if the person controls or influences the victim’s conduct by means that effectively prevent the victim from exercising freedom of choice.
On the basis of the evidence of JP, matters had simply not progressed that far, even if taken uncritically at face value.
Because of the significant doubts that arise in respect of the reliability of JP’s evidence by reason of significant inconsistencies with the evidence of RG, and because of the lack of proof of compulsion, the accused is entitled to a verdict of not guilty on count 6 of attempted rape.
That conclusion absolves the court from the necessity of considering the question of DT’s state of mind, forming the remaining element of the attempt offence. Given this conclusion, no question of ‘cross-admissibility’ arises on counts 2 and 3, firstly because it is not proven beyond reasonable doubt, and more fundamentally because the events on it lack the necessary probative value required of s 34P(2) of the Evidence Act. For the same reasons, the evidence that the accused played with his groin during this incident is inadmissible. It might be observed that had the attempted rape been proven, it would have strongly suggested a prurient interest by DT in MM, irrespective of whether he fondled his groin at the time, or not.
Counts 4 and 5
The counts of indecent filming are necessarily intimately tied up in the evidence pertaining to the second and third counts. There is no doubt at all of the indecent filming of MM in respect of count 4, or the indecent filming of DG in respect of count 5 and vice versa. The critical question is that of the defence of consent.
It is apparent from the videos that MM and DG were aware the acts were filmed. The conclusions with respect to counts 2 and 3 bear upon the issue of consent, in so far as the facts underpinning those conclusions go. However they are not conclusive of the matter, because as pointed out earlier, consent has an extended meaning for the purposes of the rape charges under the CLCA, and yet a similar statutory extension does not exist in the SOA.
This drives the enquiry back to common law principles. As seen from the earlier discussion, the common law was somewhat more demanding of the prosecution, than the statutory requirements in this respect. The videos themselves tend at face value, to suggest active consent by DG and passive consent by MM. As the High Court of Australia observed in Papadimitropoulos v The Queen:[194]
It must be noted that in considering whether an apparent consent is unreal it is the mistake or misapprehension that makes it so.
[194] (1957) 98 CLR 249, 260.
In Mr Broomhall’s opinion, certainly in the case of MM, she did not ‘identify the potential risks ‘of filming’ which might later be ‘disseminated either through social media or posted on the internet’, or the consequent ‘potential to cause great shame and hurt’.[195] Mr Balfour appeared to be of like view with respect to both MM and DG.[196]
[195] Exhibit P3A, p11.7-.14.
[196] T355.15-356.13.
In this instance it is the mistaken misapprehension which comes about by virtue of the intellectual disability of MM in the dynamics of her relationship with DT outlined earlier, that is critical to count 4. The evidence is not so decisive as to count 5 in respect of DG, since there was no critical carer or dependency relationship as between him and DT, as there was between MM and DT. There is in any event insufficient evidence to enable the prosecution to prove beyond reasonable doubt the lack of consent in each case, because of the absence of statutory extension of the meaning of consent in the SOA. And yet, since the onus is on the accused on the balance of probabilities to demonstrate consent, he has necessarily failed to discharge that burden in light of the proven circumstances, so in the end result the charges must be found proven.
So as to avoid any prospect of duplicity in the manner suggested earlier, DT is found guilty as charged on count 4 of the indecent filming of MM, the indecency comprising the act of digital penetration. For the same reasons he is found guilty of the indecent filming of DG on count 5, the indecency being comprising the act of cunnilingus.
Conclusion and Orders
For the reasons articulated at length above, the conclusion of no case to answer on count 1 is affirmed. Given the doubts that emerge with respect to the sixth count of attempted rape, coupled with the failure to prove beyond reasonable doubt the element of compulsion, the accused is entitled to a verdict of not guilty on that count as well.
When it comes to the counts of rape, counts 2 and 3, based upon the conclusion (which admits of no reasonable view consistent with innocence), that MM was not at the time of each act of intercourse conferring free and voluntary consent to those acts, and that the accused was aware of the possibility that she may not be consenting and failed to take reasonable steps to ascertain whether in fact she was consenting, he must be found guilty of these two offences.
With respect to counts 4 and 5 the respective acts of indecent filming, the accused is found guilty of both on the footing that the other elements of the offence are established beyond controversy. The defence has failed to prove on balance, positive consent, whether that be consent of MM, DG or both. There will be a direction that verdicts be entered accordingly.