R v Umatia
[2023] QCA 262
•15 December 2023
SUPREME COURT OF QUEENSLAND
CITATION:
R v Umatia [2023] QCA 262
PARTIES:
R
v
UMATIA, Minahaj Ali
(appellant)FILE NO/S:
CA No 91 of 2023
DC No 152 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 12 May 2023 (Rosengren DCJ)
DELIVERED ON:
Date of Orders: 15 December 2023
Date of Publication of Reasons: 19 December 2023DELIVERED AT:
Brisbane
HEARING DATE:
14 November 2023
JUDGES:
Morrison and Dalton and Boddice JJA
ORDERS:
Date of Orders: 15 December 2023
1. Appeal allowed.
2. The conviction on count 3 is set aside and a retrial on that count ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of two counts of sexual assault (counts 1 & 2) and one count of rape (count 3) – where the jury were misled by the prosecution to embark upon a line of reasoning that was not open and it is not possible to say they did not do so – where in the summing up to the jury, the trial judge erred in making a misstatement about the evidence – where the directions given to the jury in relation to s 24 of the Criminal Code (Qld) did not explain how the law should be applied to the facts – whether a miscarriage of justice has occurred
COUNSEL:
M J Copley KC for the appellant
M A Green for the respondentSOLICITORS:
Craven Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: On 12 May 2023 the appellant was convicted following a trial on two counts of sexual assault and one count of rape.
The appellant originally challenged the verdicts on the ground that they were unreasonable and could not be supported having regard to the evidence. Prior to the hearing that ground was abandoned and replaced with three grounds, each dealing with a specific error. It was contended that a miscarriage of justice was caused by:
(a)Ground 1 – a prosecution submission that the jury could regard a positive presumptive test in relation to two swabs as evidence capable of supporting the complainant’s evidence that intercourse occurred;
(b)Ground 2 – the learned trial judge’s misstatement of the evidence; and
(c)Ground 3 – inadequate directions concerning s 24 of the Criminal Code (Qld).
The prosecution case on each count was particularised as follows:
(a)count 1 relied on the touching of the complainant’s breasts and/or thighs;
(b)count 2 relied on the kissing of the complainant’s neck; and
(c)count 3 relied on penile/vaginal intercourse.
The defence case was that the complainant consented to the acts constituting count 1, or that the appellant honestly and reasonably believed that the complainant consented. Further, the defence case was that the acts relied on for counts 2 and 3 did not occur at all, but if the jury formed the view that they did, then the prosecution could not negative s 24 of the Code in relation to them.
Evidentiary background
The following synopsis of the evidence at the trial is drawn from the appellant’s outline before this Court. The Crown accepted that that summary could be relied upon as the framework for considering the grounds of appeal.
On 19 March 2021 the complainant went to Fortitude Valley in the evening, where she met some friends. Later that evening she went to another establishment. By the time she left it she said she was “very, very, very drunk”.[1]
[1]AB 479 line 14.
Whilst she was in the Valley Mall the appellant approached her and asked if she wanted a lift. She told him she had no money and he said he would drive her home for free.[2] She asked him if he was an Uber driver but could not remember listening for the answer.[3]
[2]AB 481 lines 1-6.
[3]AB 481 line 8.
They walked to his car and she got in the front passenger seat. She told him her address and he made an entry on his phone.
The complainant said that she was really drunk and tired. On four or five occasions he stopped the car. He leant over from his seat and touched her breasts and thighs with his hands. He started touching above her dress and pulled it down. It was a strap dress. She was not wearing a bra. He touched her exposed breasts with his hands. The dress was also fairly short and he ran his hands up her thighs. The complainant said she just “froze”. She did not do or say anything. She said she was pretty much paralytic, almost blacked out, she just did not do anything.[4]
[4]AB 483-485.
The complainant explained her reaction when the appellant started to touch her:[5]
“Okay. All right. Now, can you recall when this happened what did you do?---I just froze. Nothing. I – yeah. I didn’t do anything.
Okay. Did you say anything at this point in time?---No.”
[5]AB 484 lines 7-10.
She was asked to explain what she meant by “froze” and about the effect of the alcohol upon her at the time the appellant was touching her:[6]
“Firstly, just in relation to the alcohol that you’ve drunk; did that have any effect on you at this point?---Definitely. I was pretty much – like, I wasn’t functioning properly. Like, I was pretty much paralytic, like, almost blacked out. Like, I was struggling to speak or – yeah.
Okay. And, now, when this was happening, you mentioned you froze, but can you tell us about what sort of feelings that you were feeling at that point in time in terms of your emotional state?---Scared. Vulnerable. Like, dumb. Just I – I didn’t know what to do.
When you - - -?---And I just didn’t do anything.”
[6]AB 484 line 42 to AB 485 line 4.
She explained that she was “stuck in a car with a man that I didn’t know and I was too drunk to do anything”.[7]
[7]AB 485 line 7.
At the time the appellant was touching her she could not recall anything that he said to her, that is to say, on the four or five times that they stopped. On the last time he stopped he said something to the effect of “I need to stop”, then parked the car and came around and opened the front door, reclined her seat and climbed on top of her.[8]
[8]AB 485 lines 23-35.
The appellant pulled the car over. She did not know if he turned the engine off. Having climbed on top of her the appellant tried to kiss her. She turned her head. He kissed her neck. She did not do or say anything.[9]
[9]AB 485 line 30 to AB 486 line 11.
The complainant explained that when she was first touched by the appellant she “realised the situation I was in”,[10] and at the point when he was on top of her and kissing her neck she explained that she didn’t say anything because she was “trying to focus out the driver’s window” and “focus on the maps to try and figure out how far away I was from home”.[11]
[10]AB 485 line 14.
[11]AB 486, lines 5 and 15.
She could not recall what happened with her seatbelt. The appellant said he loved her. She felt him putting his penis into her vagina. He asked if it was okay. She did not respond. He had pulled her underwear to one side to achieve penetration. She said he did not use a condom. She just looked out the window, she “zoned out … like, disassociated … Sick. Stupid and, yeah, just scared, and I just wanted to go home.”[12]
[12]AB 487 lies 29-33.
She did not know how long he penetrated her for, but he did not ejaculate. She was still affected by alcohol. On more than one occasion he asked “if it was okay” and she said she just wanted to go home.[13] She said she was crying as she looked out the window. They drove off after she said she wanted to go home:[14]
“So you were crying. All right. How, can you remember after you said the words:
Can we just go home?
whether he responded to that?---I don’t remember a response, but I know we left after that.
Okay. All right. And do you have a memory of how it stopped, how he got off you, or not?---No. My … my memory is shocking. Like, it’s – yeah. I – I was blackout drunk. Like, … if nothing bad [had] happened … I would probably not have remembered anything from the night.”
[13]AB 487 line 35 to AB 488 line 2.
[14]AB 488 lines 35-45.
The next thing the complainant could remember was getting to her front door. She sent a text message to one of her best friends. It read:
“My Uber driver there just rapes me so many times.”
Her friend called the police and the police went to the complainant’s house.
The complainant said that she did not give consent to the appellant to touch her breasts or thighs, kiss her neck or put his penis in her vagina. She did not consent because she was paralytic. She said, too, that she was not attracted to men. She explained why she did not consent:[15]
“Because I was – I was paralytic. Like so intoxicated that I couldn’t even – I could barely even speak. There was no consent.”
[15]AB 492 lines 4-6.
She then explained that with some more detail:[16]
“I couldn’t barely – barely speak. Like, I was frozen. I don’t know. I was also – how – sorry. Like, helpless. Like, I couldn’t – I wasn’t in a situation where I could – yeah. I didn’t – my brain wasn’t functioning. I didn’t know what to do.
…I wasn’t – wasn’t in my right mind at all.”
[16]AB 492 lines 25-30.
The friend gave evidence that she received the text message from the complainant and telephoned her straight away. The complainant was very emotional and crying. When she got to the complainant’s house, which was about a five minute drive, the complainant let her in and then slid down a wall into a seated position. She was crying and smelt of liquor, and extremely drunk.
The complainant told uniformed police that the appellant offered her a free trip home from the Valley, that he stopped so many times, that he raped her, he got on top of her. She said she should have stopped him, that she did not say anything, she did not even ask him to stop.
One of the formal admissions made was:
(a)that at 7.30 am on 20 March 2021 a forensic examination was performed on the complainant and samples (swabs) were taken for DNA analysis. No injuries were observed. The absence of injuries to the genitals was neither confirmation of or a refutal of non-consensual intercourse;[17]
(b)An analysis was performed on the following swabs:
(i)a cervical swab;
(ii)a posterior fornix vaginal swab;
(iii)a vaginal introitus swab;
(iv)a vulva swab;
(v)a groin wet swab;
(vi)a groin dry swab; and
(vii)a peri-anal swab.
[17]AB 371.
Queensland Health Forensic and Science Services, in testing for the presence of seminal fluid, used one of two screening tests, the acid phosphatase test or a per prostate specific antigen (PSA) test. The latter tests for a protein that is found in high concentration in semen. If that test gives a positive then the “possible” presence of semen is indicated. PSA, also being present in urine, faecal matter and breast milk, albeit in much lower quantities compared to the level of it in seminal fluid, meant that a scientist can say no more than that semen is possibly present in a case where the PSA test is positive, pending a microscopic examination to look for spermatoceles. If no spermatoceles are detected upon microscopic examination, then semen remains only a possibility. The gender of the person who may have contributed urine could not be determined. A positive presumptive test could even be a false positive for seminal fluid, in view of the test being positive due to reaction with fluid found, for example, in urine. The scientist who gave this evidence could not say anything about the presence or absence of spermatoceles in “pre-ejaculate”.
The posterior fornix vaginal swab and the vaginal introitus swab each tested positive during the PSA test for the possible presence of semen. However, no spermatoceles were detected on either swab. All of the other swabs tested negative for the possible presence of semen.
In an interview with police on 23 March 2021, the appellant said that he spoke with the complainant in the Valley. She told him she was hungry but had no money, she said she wanted to go home but had no money. He offered to buy her some food and said he could drive her home. She accepted his offer of a lift. She said she lived at Greenslopes and he said that was on his way to his place. He denied that he touched her breasts, denied that he pulled her dressed down and denied having intercourse with her. He was asked what his opinion of her level of intoxication was and he said the complainant was walking and communicating, she was “in her senses”.
About half an hour after that interview ended, the appellant said he had some more he wanted to say. In the second interview he said that the complainant told him about a relationship breakup. He asked if he could hold her hand and she said okay. He felt her lap. He stopped the car. He asked if he could touch her breasts, she said okay and he touched her. She said “Let’s go home” and he drove her to her house. Upon arriving there he asked if he could kiss her. She nodded and said yes. He kissed her for up to five minutes and he touched her breasts as far down as her stomach. He ejaculated in his underwear and said to her that was more than enough. They each got out of the car and said goodnight, and she left. He said the kissing was mouth to mouth.
Swabs taken from the complainant’s breasts did not show up saliva, but one contained a mixed DNA profile that was greater than one hundred billion times more likely to have occurred if the appellant had contributed DNA to it, then if he had not.
Ground 1 – Prosecutor’s statement
In the course of the address by the prosecutor attention was focused on matters that were consistent or inconsistent with the complainant’s evidence because, as the prosecutor told the jury, whether what was done in the car was done with consent turned very much on whether the complainant’s account was accepted as being honest and reliable.[18] The prosecutor then turned to the DNA evidence, telling the jury that the DNA evidence from the vaginal swabs were inconclusive, and did not prove penetration one way or another. The jury was then told that in those circumstances it made sense “that nothing conclusive could be drawn from the DNA evidence on that point.”[19]
[18]AB 28 lines 21-23.
[19]AB 28 lines 39-40.
The prosecutor then moved to the topic of “possible presence of seminal fluid”. And reference was then made to the evidence from the expert that the test was for the presence of a protein (PSA) which was found in seminal fluid, but also in fluids such as urine, breast milk, faecal matter and sweat. Reference was then made to the expert’s evidence that he could not rule out that the tests were a “false positive because of other fluids” nor could he say whether the tests could be gender specific. The prosecutor continued:
“So Mr McNevin said he can’t definitely say that it is seminal fluid because of those other substances.”[20]
[20]AB 29 line 15-16.
The prosecutor then moved to the two swabs where there was a positive test, and reference was made to where those swabs were taken from. The prosecutor then said:[21]
“So both of those samples were taken from inside [the complainant’s] vagina. And I would suggest to you that you might think that that could be important. Because if you were to think about it was urine in that sample, think about, logically, how it could have gotten there. Now, [the complainant] had said at that time she was sexually attracted to females and she clearly denied being intimate with other males in March 2021. So she wasn’t with other males so it wouldn’t have been seminal fluid from another male or urine from another male. If it was another substance, for instance, like urine, wouldn’t a possible scenario be that the urine could’ve come from the defendant’s penis. Now, I would suggest to you that would be consistent with [the complainant’s] account that she was penally penetrated. And so what I’m suggesting to you is that this is a circumstantial piece of evidence that you can take into consideration, and that consistency is another feature that you can help use to support the [complainant’s] account.”
[21]AB 29 lines 30-41.
As Mr Copley KC, appearing for the appellant, points out there are a number of problems with that passage.
First, the DNA evidence and the presumptive test evidence was intractably neutral. It did not support a conclusion of penetration, or the converse. It could therefore not form a piece of circumstantial evidence that could be considered to bolster the account given by the complainant.
Secondly, implicit in what was said was that one could eliminate possible sources of the presence of PSA, leaving only urine to be considered. There is no evidentiary basis for that approach.
Thirdly, even if that was possible, there is no evidentiary basis upon which one could exclude the complainant as the possible source. Therefore the factual foundation for what was postulated to the jury is entirely absent.
Fourthly, the passage is not saved by the earlier references to how the DNA evidence was inconclusive. The prosecutor was inviting the jury to use a piece of evidence that proved nothing as a basis for inferring that the positive test was consistent with the appellant’s penetration of the complainant. It proved no such thing.
The passage set out in paragraph [31] above was not all that the prosecutor said on this topic. Her address took place over two days. On the second day the prosecutor returned to what she had been saying:[22]
“And then I spoke about that issue of the possible presence of seminal fluid being located in [the complainant’s] vagina. And so I reminded you that [the complainant] hadn’t being intimate with any other males in March 2021, and she said she was interested in girls. So my suggestion to you was you could accept that it could be seminal fluid from the defendant, but if you didn’t think it was seminal fluid and it could’ve been another bodily fluid such as urine, like the scientist told you that that could be a positive for, then I said the mechanism of the defendant’s penis being inserted into [the complainant’s] vagina could’ve transferred that urine in there. And so you’ll remember the swabs that gave that positive – sorry, that possible positive result was inside her vagina.”
[22]Transcript 12 May 2023 P 1-2 lines 17-26.
Whatever else was achieved by what was said on the second day, it reinforced the impugned statement by inviting the jury to conclude that the positive test was for a fluid other than seminal fluid, and likely urine, and then to infer the mechanism of transfer.
The jury were misled by what was said to them in the passage referred to in paragraph [31] above. They were invited to embark upon the line of reasoning that was not open. It is not possible to say they did not do so. There has therefore been a miscarriage of justice and this ground must succeed.
Ground 2 – Misstatement of evidence by the trial judge
In that part of the summing up which dealt with a summary of the addresses of each side, the trial judge said:[23]
“There is the possible presence of the seminal fluid. The Crown relies on the PSA test which shows the higher levels of seminal fluid in the internal vaginal swabs, that it could be seminal fluid.”
[23]AB 53 lines 39-42.
Before this Court the Crown accepted that it was misstatement of the evidence to say so. The PSA test did not show “higher levels of seminal fluid in the internal vaginal swabs”.
Although this was something said in the course of summarising the submissions of the Crown, and not as part of the judge’s summing up otherwise, it nonetheless misrepresents what the Crown said.
Further, there is a possibility that even though this was part of summarising the Crown’s submissions, the jury might have been distracted into thinking that the PSA tests showed that seminal fluid had actually been located on the two internal swabs. That is not the case. The PSA test was simply whether the particular antigen was present or not, and a positive test simply meant “the possible presence of seminal fluid”.[24] As the expert explained:[25]
“What is a presumptive chemical test?---So presumptive test refers to the fact that it’s not definitive for the presence of that thing we’re looking for. So in this instance, as we discussed earlier, the PSA present in high levels of semen, so you’d expect to find it, if there’s semen there, you’d expect to get a PSA positive. It helps us locate the presence of seminal fluid but knowing that there are other biological fluids that can also contain some quantities of PSA, we can’t say it’s definitive for the present of semen, because it could be a reaction caused by the presence of PSA from another biological source.”
[24]AB 315 line 29, AB 316 lines 1-9.
[25]AB 323 lines 1-9.
The possibility of the jury being misled by that comment, albeit that it was in the summary of submissions made by the Crown, cannot be ruled out. Consequently, the contention that there has been a miscarriage of justice on this ground should be upheld.
Ground 3 – Honest and reasonable belief – s 24 of the Code
This ground concerns the fact that the directions on the s 24 defence did not relate the issues to the facts relevant to those issues or explain how the law applied to those facts.[26]
[26]RPS v The Queen (2000) 199 CLR 620 at 637 [41]; Fingleton v The Queen (2005) 227 CLR 166 at 197 [77].
At trial the Crown accepted that a s 24 defence was open and that the jury should be directed upon it. The prosecutor turned to that issue at the end of her address,[27] the jury were told that “what you need to do is examine [the complainant’s] account as well as the defendant’s, which I would suggest you would find not credible.”[28] Then, telling the jury to look “at the circumstances of the evidence that you have before you”, the prosecutor went on:[29]
“Again, look at the relevant features in the matter. They are relative strangers. There seems to be an age difference, because [the complainant] believed he was older. There was no sexual desires expressed by her. She indicated that she was not interested in this man. There is no reasonable way that this defendant could believe this young girl, who is a stranger, who is trying to get home, wanted to have unprotected sex in a dirty car. She was frozen when he first started touching her breasts and thighs. She turned away from his when he kissed her. She said she was frozen during the penile penetration and her head was turned away and she was crying.
Given how he was on top of her, he would have had to have seen this. There is no basis in this case, I’d submit to you, for you to accept that the defendant was mistaken in law as to the question of consent.”
[27]Transcript 12 May 2023, T1-11 to T1-12.
[28]Transcript T1-12 lines 8-9. Emphasis added.
[29]Transcript 12 May 2023, T1-12 lines 16-27.
In the defence address, counsel had told the jury that the question of honest mistake would arise in the event that they rejected the appellant’s evidence, returned to the complainant’s evidence, and come to the conclusion that she did not consent.[30] The defence then suggested a few things that would show the honest and reasonable but mistaken belief:[31]
“Now, the first is that they met at the Brunswick Street Mall. He didn’t force her. There’s no roughhouse tactics; there’s nothing. There’s a chat. I accept perhaps maybe she looked away initially. But after a few words, she went with him. They both got up independently. They walked to the car. She walked a very long distance to the car. Then there was some touching. And her evidence said that she did not say no, did not say stop, didn’t pull away, didn’t say anything that would indicate to him that she was not consenting. So his belief at that time, I suggest to you, was that she may have been consenting. And he continued to do what he did, touch her breast and, on her account, kiss her on the neck. And that was an honest and reasonable but mistaken belief. And you consider the factual circumstances of this case. If she had come back and said no straightaway, then clearly he could not have held that belief.”
[30]Transcript 12 May 2023, T1-24.
[31]Transfer 12 May 2023, T1-24 lines 32-42.
In the summing up the trial judge turned to the question of giving consent. What was said by her Honour was the subject of a written draft of proposed directions which had been sent to both counsel and was approved by them.[32] The written document contained two parts, A and B.[33]
[32]AB 415 lines 44-48, AB 416 lines 41-47; Crown AB 417-418; Defence AB 418 lines 17-20.
[33]AB 690, Part B; AB 692, Part A.
The two documents were given to the jury[34] and the trial judge summed up by reference to them.
[34]AB 46 lines 16-30.
Part A had a section headed “The issue of consent relevant to the three counts”.[35] Then, the question of cognitive ability to give consent was raised and in that context it said:[36]
“If you are satisfied beyond reasonable doubt that the Crown has established that [the complainant] did not have the cognitive capacity to consent, it is then necessary to consider whether the Crown has satisfied you beyond reasonable doubt that the defendant did not have an honest and reasonable belief that [the complainant] was giving her consent. An honest belief is one which is genuinely held by the defendant. A reasonable belief is one held by the defendant, in his particular circumstances, on reasonable grounds.”
[35]AB 693.
[36]AB 693. Emphasis added.
The document continued:[37]
“Submission does not necessarily mean that there is consent. All of the circumstances surrounding the particular occasion will be important in deciding whether there is consent, or whether there is merely submission without giving consent.
If you get to the point where you are satisfied beyond reasonable doubt that [the complainant] did not give her consent, you must then consider if the Crown has satisfied you beyond reasonable doubt that the defendant did not have an honest and reasonable belief that [the complainant] was giving her consent. An honest belief is one which is genuinely held by the defendant. A reasonable belief is one held by the defendant, in his particular circumstances, on reasonable grounds.”
[37]AB 693. Emphasis added.
The trial judge followed the form of the document approved by counsel when summing up.
Having taken the jury through Part A in respect of the elements of the offences,[38] her Honour started on Part B. A juror asked about that section headed “The issue of consent relevant to the three counts”, and her Honour explained that she was going to take them through the consent issue, and expand on Part A.[39]
[38]AB 49.
[39]AB 50.
Her Honour commenced with the question of consent, gross intoxication and cognitive capacity to give consent. After explaining those matters the trial judge repeated the substance of the passage set out in paragraph [50] above:[40]
“If you get to the point where you are satisfied beyond reasonable doubt that the Crown has established that [the complainant] did not have the cognitive capacity to consent, what you then need to do is to consider whether the defendant had a mistaken belief that she did have the cognitive capacity to consent. The mistaken belief must be honest and it must be reasonable. What is an honest belief? It was one genuinely held by the defendant. And what is the reasonable belief? It is a reasonable belief held by the defendant in his particular circumstances on reasonable grounds. That is what you have to consider next.”
[40]AB 51 lines 11-18. Emphasis added.
The trial judge then explained matters concerning proof of the absence of consent, and that the giving of consent involves “the making of a representation that the person is agreeing to participate in the sexual act”, and that the “representation can be made by words or actions or by both”.[41]
[41]AB 51 lines 40-43.
In that context her Honour then said:[42]
“You may find that [the complainant] said in her evidence that she did not voice an objection and she did not react when the defendant was performing the sexual acts on her. Sometimes a failure to voice an objection or inaction can imply giving consent of what is done and sometimes it does not imply giving consent to what is being done. What do you do then? You need to look at the circumstances in order to understand the inaction in the face of a sexual act. You will remember that [the complainant’s] explanation for not voicing her objection or not reacting was that she was scared, she felt vulnerable, she did not know what to do. You might also find that she said that she was stuck in the car with this man that she did not know. You might also find that she said that she did not know what he was capable of if she did not do what he said. So submission does not necessarily [mean] that there is consent. There may be many reasons a person might submit to something being done, although that person is far from consenting. What I am really saying is that submission to a sexual act does not necessarily equate to consent that is freely and voluntarily given.
So for you, ladies and gentlemen, the circumstances will be important in deciding whether there is consent or whether there is merely submission without giving consent. It is for you to decide or consider whether in all of the circumstances that you accept, that you are satisfied beyond reasonable doubt that [the complainant] did not consent to the sexual act under consideration for each of the three counts. It is for you what significance you attach to the fact that she did not react in any obvious way.”
[42]AB 51 line 45 to AB 52 line 17.
Her Honour then advised the jury that all of the matters surrounding the particular occasion may be relevant to determining the significance of her evidence that she did not voice an objection or react in any physical way:[43]
“All of the matters surrounding the particular occasion may be relevant to you in determining the significance of her evidence that she did not voice an objection or react in any physical way. Some of the circumstances that you might consider relevant are they were in effect strangers having only met a short time prior to going to the defendant’s car. She found herself in a situation where she was sitting in the front passenger seat of the defendant’s car, in circumstances where he was in effect a complete stranger to her and he was the one driving the car. You might consider or might find these circumstances to be relevant as to whether you are satisfied that she did not give her consent freely and voluntarily. It is all of the events of the early hours of that morning, including things that I have not mentioned, they may be relevant in determining the significance of [the complainant] not having voiced her objection or reacting in any way. Was she consenting to the sexual act or was she merely submitting to something that she did not know how to avoid but she was not giving her consent? The crucial question here that you must answer is whether you are satisfied the Crown has established beyond reasonable doubt that [the complainant] did not freely and voluntarily give her consent to the sexual act alleged.”
[43]AB 52 lines 19-34. Emphasis added.
It was in that context that her Honour gave the following direction:[44]
“If are satisfied of this and you are satisfied of the other elements to the offence, you then need to consider, in relation to each count, another issue. This is whether the Crown has satisfied you beyond reasonable doubt that the defendant did not have an honest and reasonable belief that she was giving her consent. Once again, an honest belief is one genuinely held by the defendant and a reasonable belief is one held by the defendant in his particular circumstances on reasonable grounds.”
[44]AB 52 lines 36-41. Emphasis added.
In my view, the way in which the matter was addressed made it plain to the jury that the same sequence of events that were relevant to the question of consent were those relevant to the question of whether the appellant held an honest and reasonable but mistaken belief. The repeated references on that issue to a reasonable belief being one held by the defendant “in his particular circumstances” is significant. The particular circumstances the defendant found himself in are those that her Honour referred to in the passage set out at paragraph [57] above. The jury were told they needed to look at “the circumstances in order to understand the inaction in the face of a sexual act”. They were reminded of the reasons the complainant gave for not having spoken out or reacting. The jury were told those circumstances were important in deciding whether there was consent or merely submission without consent. And the jury were reminded again that it was “all of the events of the early hours of that morning” that may be relevant in determining “the significance of [the complainant] not having voiced her objection or reacting in any way”.
That approach was one which defence counsel plainly considered adequate to deal with the s 24 defence. Not only was that form of direction approved by him, no redirection was sought.
In my respectful view, the directions given on the s 24 defence were adequate in the circumstances. When read as a whole, the jury could have been left in no doubt that they were to consider the same set of circumstances, including the complainant’s actions and failure to respond, in assessing the question of whether the defence had been excluded. Importantly, they were directed specifically to the complainant’s evidence, and on the basis that consideration would be given to it in the event that they rejected the evidence of the defendant.
This ground fails.
Conclusion
Grounds 1 and 2 have succeeded but ground 3 has failed. Accordingly, I propose the following orders:
1. Appeal allowed.
2. The conviction on count 3 is set aside and a retrial on that count ordered.
DALTON JA: I agree with the orders proposed by Morrison JA and with his reasons.
BODDICE JA: I agree with Morrison JA.
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