Roberts v The Queen
[2011] VSCA 162
•2 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0803
| PETER CHARLES ROBERTS | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN and BONGIORNO JJA and LASRY AJA |
| WHERE HELD | WANGARATTA |
| DATE OF HEARING | 31 May 2011 |
| DATE OF JUDGMENT | 2 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 162 |
| JUDGMENT APPEALED FROM | R v Roberts (Unreported, County Court of Victoria, Judge White, 9 July 2009 (date of verdict), 28 August 2009 (date of sentence)) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted on one count of rape – Complainant gave evidence that she was asleep at time of alleged rape – Applicant asserted in record of interview that he believed that complainant was consenting – Trial judge directed jury that they could find accused guilty even if they found that he believed that complainant was consenting – Trial judge also directed jury that mens rea for rape would be established if Crown proved beyond reasonable doubt that accused was aware that complainant might be asleep at time of penetration – Trial judge’s directions were erroneous – Proviso could not be applied – Application granted and appeal treated as instituted and heard instanter and allowed – Retrial ordered – Worsnop v The Queen [2010] VSCA 188 – Burns v The Queen (1975) 132 CLR 258 – Crimes Act 1958 ss 36 and 37AA.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr P F Tehan QC and Mr C B Boyce | Michael J Gleeson & Associates |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Bongiorno JA to deliver the first judgment.
BONGIORNO JA:
In March 2008, the applicant, Peter Charles Roberts, was temporarily living with the complainant and her 10-year-old daughter at the complainant’s unit in a Melbourne suburb. On 20 March 2008, the complainant was at home with Roberts and her daughter when a neighbour, WP, arrived. She, Roberts and WP drank some alcohol. The complainant also had a small amount of cannabis. After some time, WP left. The complainant went to bed and, on her evidence, did not wake up until morning.
When the complainant woke the next morning, she felt a stinging sensation in her vagina. She went to the toilet and noticed the odour of semen. She had fluid on her legs and her pyjamas had a stain on them. She recognised the sensation and the odour as being the result of having had sexual intercourse, though she had no recollection of engaging in such activity. The only other persons in the house when she got up were her 10-year-old daughter and the applicant. Her daughter was asleep in the complainant’s bed and the applicant was asleep on a couch in the living room.
Since it appeared that the only person who could have been responsible for her condition was the applicant, the complainant confronted him and demanded to know why he had done what he did. The applicant said he did not know and did not offer any explanation. Later that day, the complainant demanded that he leave the unit. She then reported the matter to the police.
The applicant was interviewed by police and agreed that he had had sexual intercourse with the complainant. He denied that he had raped her and told police that he had believed the complainant was consenting. He said that he did not think she was asleep when the intercourse occurred. He was charged, and subsequently
presented, on one count of rape.
According to the complainant’s evidence at trial, she had known the applicant prior to March 2008 for about two years. She had met him in about 2006 when she lived in other accommodation. He was introduced to her by a family friend and she had provided accommodation to him on a temporary basis because of some difficulties that he was then undergoing. The complainant denied a suggestion put to her in cross‑examination that she had had sexual intercourse with the applicant on two occasions whilst they were living in her former home.
On 9 July 2009, after a four-day trial in the County Court in Melbourne, the applicant was found guilty by a jury. In due course, he was convicted by the trial judge and sentenced to seven years’ imprisonment with a non‑parole period of five years. He now seeks leave to appeal against his conviction.
Grounds 1, 4, 5 and 7
Grounds 1, 4, 5 and 7 are all concerned with the mens rea of rape and the way that the trial judge dealt with this element of the offence of rape in his charge. It was put generally by counsel for the applicant that his Honour failed to properly describe the mens rea of rape in the course of that charge. Although this was the substance of ground 1, in his written outline of argument, counsel for the applicant pointed to grounds 4, 5 and 7 as being particulars of this overall contention. The substance of this appeal can be dealt with under those grounds.
Ground 4
This ground is, in terms, that the trial judge erred in directing the jury that the applicant must consider whether his belief in the complainant’s consent was reasonable.
The applicant’s defence to the charge of rape was that he believed that the complainant was consenting to having sexual intercourse with him. As he had raised that defence in his interview with the police, and had continued to assert it at trial, the provisions of s 37AA of the Crimes Act 1958 were enlivened. Thus, the trial judge was required to:
direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider—
(a) any evidence of that belief; and
(b) whether that belief was reasonable in all the relevant circumstances having regard to—
(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and
(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
(iii) any other relevant matters.
The transcript of the judge’s charge in this case records that, after his Honour directed the jury with respect to the elements of rape, he said:
In this case the accused says that he believed that the complainant consented to the sexual penetration. He stated it was consensual, without objection, and she made noises of enjoyment. You will need to make an assessment of this assertion in order to determine whether the prosecution has proved this fourth element. That is the accused was aware that the complainant was not or might not be consenting.
You must consider any evidence concerning the accused [sic] belief about the complainant’s consent and determine whether the accused actually held - remember that the accused does not have to prove this. The law says that the accused [sic] belief in consent does not need to be reasonable, but in deciding whether or not the accused in fact held that belief he must consider whether his alleged belief that the complainant was consenting was reasonable in all the circumstances.
The reasonableness or unreasonableness of the accused’s alleged belief is no more than a guide to help you decide whether or not the accused had that belief. However, in considering whether the belief was reasonable in all the circumstances the law says you must have regard to whether the accused took any steps to find out whether the complainant was consenting, and if so the nature of those steps.
If you are satisfied that the complainant was not consenting because you found that she was asleep, then in considering whether the belief was reasonable you must have regard as to whether or not the accused was aware of that circumstance. However, you should not focus on only one fact and ignore the rest. You must consider all the evidence, including how things are said or done in the circumstance. Here the complainant says she was asleep and only became aware of sexual intercourse on awaking [sic]. The accused says that there was no objection. The complainant appeared to be enjoying the sexual intercourse.
An assertion about the accused’s belief and consent must be taken into account by you in determining whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not or might not be consenting. Even if you find that the accused did have such a belief you will need to decide whether the prosecution has proved this for their further element.
As the transcript reads, it obviously contains an error. The trial judge has substituted ‘he’ for ‘you’ in the last sentence of the second paragraph. His Honour ought to have directed the jury that they were required to consider whether the applicant’s alleged belief in consent was reasonable in all the circumstances.
If no more had occurred in the course of the judge’s charge or the jury’s deliberations, that error might have been sufficient to require a new trial. But between the point at which this error was made and the jury reaching its verdict, a number of other things occurred which changed the situation somewhat. The judge continued his charge for some time and then sent the jury out to consider its verdict. During their deliberations, the jury asked a number of questions, mainly concerned with the question of consent and the applicant’s ‘perception’ of the complainant’s consent. These questions required redirections, in the course of which the trial judge again dealt with the question of the reasonableness of any relevant belief held by the applicant as to the complainant’s consent. His Honour correctly said to the jury:
The law says that the accused’s belief in consent does not need to be reasonable but in deciding whether or not the accused in fact held that belief you must consider whether his alleged belief that the complainant was consenting was reasonable in all the circumstances.
This redirection was the last redirection the judge gave before the jury returned its verdict. It was provided by his Honour in response to a request from the jury in these terms:
Please supply a written explanation of law concerning consideration of state of mind, which you gave in your original summing up or please allow us to take detailed notes.
It was in the course of providing that explanation that his Honour made the statement quoted above. It was this redirection that the jury heard last before considering and reaching their verdict. In light of the jury’s request and the judge’s response and the fact that the erroneous direction had been given on the morning of the previous day, it must be concluded that the original error could have had no effect on the jury’s verdict. They were considering the right direction at the time they reached their verdict and for some hours before.
This ground of appeal should not be upheld.
Ground 5
Ground 5 concerns an admittedly erroneous direction given by the trial judge with respect to the mental element of the crime of rape. For present purposes, the crime of rape is defined by s 38(2) of the Crimes Act 1958 as occurring when a person:
(a)…intentionally sexually penetrates another person without that person’s consent—
(i)while being aware that the person is not consenting or might not be consenting; or
(ii)while not giving any thought to whether the person is not consenting or might not be consenting;
In Worsnop v The Queen,[1] it was held that if a person believes that another person is consenting to an act of sexual penetration, then he or she cannot be ‘aware that the person is not consenting or might not be consenting’ for the purposes of s 38(2)(a). Thus, a direction to a jury that they may find an accused guilty even if they accept that he or she believed that the complainant was consenting is erroneous. Worsnop confirmed that the position at common law that belief in consent was a complete defence to rape applies to the offence of rape as defined by s 38(2). It has been applied in at least two subsequent cases.[2]
[1][2010] VSCA 188 (‘Worsnop’).
[2]Gordon v The Queen [2010] VSCA 207; Wignall v The Queen [2010] VSCA 327.
The direction considered in Worsnop, which was in all relevant respects identical to that given by the trial judge in this case, was in the following terms:
Evidence of [the accused’s] belief in consent must be taken into account by you when determining whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not, or might not be, consenting. Even if you find that the accused did have such a belief, you will still need to decide whether the prosecution has proved this fourth element. You might find that the accused believed the complainant was consenting, but still be satisfied, beyond reasonable doubt, that the accused was aware of the possibility that the complainant was not consenting. In that case the fourth element would be met.[3]
At the time the trial judge in this case delivered his charge, the above passage was part of the standard direction contained in the Criminal Charge Book published by the Judicial College of Victoria.
[3]Worsnop [2010] VSCA 188, [20] (emphasis added).
The trial judge first gave the jury the impugned direction early in his charge when explaining to them the elements of rape. As already noted, after his Honour finished his charge, the jury asked a number of questions relating to the issue of consent and the applicant’s perception of consent. Eventually, it asked the trial judge to provide a transcript of his summary of the law. Although his Honour declined to do so, he did repeat his original directions on the law of rape and, in the course of doing so, repeated the impugned direction in the same terms as he had originally used. He gave this redirection almost immediately before the jury retired for the last time before reaching their verdict.
In Worsnop, despite deciding that the trial judge’s direction was an error of law which would normally vitiate the trial, the Court dismissed the appeal by applying the proviso to s 568(1) of the Crimes Act 1958. It found that there had been no miscarriage of justice. Counsel for the Crown argued for a similar result in this case. He submitted that a review of the evidence demonstrated that the applicant’s version of events was implausible. He referred particularly to the applicant’s evidence that:
· the complainant’s daughter was in bed and initially awake and playing ‘I spy’ with the complainant and him;
· he was massaging the complainant in bed;
· the complainant’s daughter ‘miraculously’ dropped off into a deep sleep, allowing the act of intercourse to take place;
· he, as a mere boarder, was able to gain access to the complainant’s bedroom; and
· he, with no meaningful relationship with the complainant, was suddenly welcomed in an act of sexual intercourse.
All of these matters, however, with the possible exception of the complainant’s daughter being in the bed and asleep, were contentious. Insofar as they needed to be considered and findings made in respect of them, they were all matters within the exclusive province of the jury.
Consent and the applicant’s perception of consent were at the heart of this case. It could be concluded from the number of questions that the jury asked, and the subject matter of those questions, that they were particularly concerned with issues relating to consent and belief in consent. It could not be said that there was no substantial miscarriage of justice when they were required to consider these issues following an erroneous direction. The proviso should not be applied in this case.
This ground of appeal should be upheld.
Ground 7
Ground 7 also concerns the mental element of the offence of rape in the context of the applicant’s assertion that he believed that the complainant consented to his having sexual intercourse with her and her evidence that she was asleep at all relevant times. It complains that the trial judge erred by directing the jury that it was enough to establish the mens rea for rape if the Crown proved beyond reasonable doubt that the applicant was aware that the complainant might be asleep.
Section 36 of the Crimes Act 1958 lists a number of circumstances in which, as a matter of law, a person is deemed not to freely agree to an act, including an act of sexual penetration. That list includes the circumstance of the person being asleep.
Section 37AA of the Act refers to the circumstances listed in s 36. It provides that, if evidence is led or an assertion is made that an accused believed that a complainant was consenting to a sexual act, the trial judge must direct the jury that, in considering whether the Crown has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not be consenting, they must consider any evidence that the accused had the asserted belief and whether that belief was reasonable. In considering the reasonableness of the asserted belief, they must, if they find that one of the circumstances listed in s 36 existed in relation to the complainant, have regard to whether the accused was aware that this circumstance existed in relation to the complainant.
In this Court, counsel for the applicant argued that the effect of ss 36 and 37AA was that if the jury accepted that the applicant was aware that the complainant was asleep at the time sexual intercourse occurred, this would be relevant to whether or not his asserted belief in her consent was ‘reasonable’ for the purposes of s 37AA. Reasonableness would, in turn, be relevant in determining whether the Crown had proved beyond reasonable doubt that the applicant possessed the mens rea for rape. Thus, so the argument goes, the Crimes Act 1958 does not conflate an awareness that a s 36 circumstance exists in relation to a complainant with an awareness that the complainant is not consenting or might not be consenting. On the contrary, the Act contemplates that a person may be aware that a s 36 circumstance exists in relation to a complainant, but have an honest (though unreasonable) belief that the complainant is consenting. If a person has such a belief, then it follows from Worsnop that he or she cannot be guilty of rape. The trial judge’s direction, the applicant argued, impermissibly conflated awareness of the existence of a s 36 circumstance with possession of the mens rea for rape.
Counsel for the applicant conceded that it would be open to a jury to accept the existence of the relevant mens rea as an inference from findings that the complainant was in fact asleep at all relevant times and the applicant was aware of that fact. However, it is for the jury to draw any such inference and to reach a conclusion regarding the applicant’s mental state — not for the judge to direct the jury that they could reach that conclusion without going through the correct reasoning process.
Counsel for the applicant submitted that the trial judge’s erroneous direction in this case gave rise to a miscarriage of justice. In support of this submission, he pointed to the applicant’s version of events as set out in his record of interview, in which he said that he disrobed the complainant and heard her utter groaning noises of apparent approval. This demonstrates, counsel for the applicant argued, that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was aware that the complainant might be asleep but to think it reasonably possible, if not probable, that he positively believed that she was awake. Thus, it would have been open to the jury, if they had been properly instructed, to conclude that the Crown had not proved the mens rea for rape beyond reasonable doubt. The direction given by the trial judge effectively precluded the jury from reasoning in this way.
The Crown answer to this argument was that no case to this effect had been run by the applicant at trial. Further, there had been no exception taken to the part of the judge’s charge which is now impugned. The Crown did not seek to justify the judge’s directions.
The judge’s directions were erroneous. The jury ought to have been directed that if they accepted that the complainant was asleep at the time of penetration, then they needed to consider whether the applicant was aware of that fact. If they found that he was, then they had to consider that circumstance (together with any other relevant matters) when determining whether the applicant’s asserted belief in consent was reasonable, as a circumstance relevant to their consideration of whether the Crown had proved beyond reasonable doubt that the applicant was aware that the complainant was not consenting or might not be consenting. It was not sufficient for the Crown merely to prove that the applicant was aware that the complainant might be asleep, and the jury ought not to have been directed that it was.
It is no answer to this ground to say that the case was fought between the parties without reference to the specific matters complained of. Mens rea was central to the applicant’s defence. The jury was not entitled to reason to conviction using the path laid out in the judge’s charge. The applicant was entitled to be tried according to law notwithstanding that no exception was taken to the judge’s charge: R v Clune (No 2).[4]
[4][1996] 1 VR 1, 6 (Callaway JA).
This ground of appeal should be upheld.
Ground 2
This ground complains of the failure of the trial judge to direct the jury properly with respect to alleged admissions made by the applicant. Three matters are referred to: a comment made by the applicant to the complainant the morning after the alleged rape; arguments made by the Crown as to the applicant’s failure to mention the neighbour, WP, until late in his record of interview and his having moved from the complainant’s bedroom to the lounge room after the alleged rape; and suggestions made by the police to the applicant in various parts of his record of interview.
Evidence of the first of these alleged admissions was given by the complainant. She said that the morning after the rape she was upset. Her evidence as to the admission was as follows:
Did you explain to him what you believed he’d done?---He already knew what he’d done, but I just told him. I said, ‘Why?’ I wanted an answer. ‘Why?’
Did he give an answer?---Yeah.
What was the answer?---‘I don’t know.’
Did he say anything else about it?---Yeah. Well, I was sort of screaming at him at that stage. I was getting really angry and frustrated, and I sort of said to him that, you know, ‘Did I ever give you consent?’ and he said, ‘No.’ He did not deny to me at all what he’d done, and I sort of said to him that, you know, what he’d done was technically rape because I hadn't given consent and he told me to ring the police.
Did he produce a telephone for that purpose?---Yes, he did.
Did you say to him, ‘Look, I’m not going to do that. I’m not in the business of wrecking peoples’ lives,’ at that stage. Is that right?---Pretty much, yes. That's what I said.
In his charge to the jury, the trial judge referred to this conversation but gave no specific direction with respect to it. However, his Honour of course gave the jury general directions as to the way that they should approach their task and the assessment of the evidence. Counsel for the applicant argued that he ought to have given a direction as to that part of the conversation which contained a possible admission. He suggested that the trial judge ought to have told the jury that they could only act on an admission if they were satisfied that it was made and that it was true.
No exception was taken to the judge’s charge. No request was made that he give any particular direction with respect to this conversation. The complainant was cross‑examined on what transpired between her and the applicant the morning after the alleged rape and it was suggested to her that she never used the words ‘did I ever give you consent?’. No question was put to her concerning the applicant’s alleged response to her question.
Although in his record of interview the applicant gave a version of the conversation between him and the complainant the morning after the alleged rape, he did not say anything as to having made the admission attributed to him by the complainant.
In Burns v The Queen,[5] the High Court considered an application for special leave to appeal against a conviction on a count of armed robbery. Evidence had been given at the applicant’s trial that he had made a confession to police. The applicant denied making the confession. On two occasions during the trial (but not in his final directions to the jury), the trial judge told the jury that they could use the statement against the accused if they thought it was truthful and accurate. In refusing special leave to appeal, a majority of the Court referred to the following passage from the famous Victorian case of Ross v The King:[6]
there is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.[7]
[5](1975) 132 CLR 258 (‘Burns’).
[6](1922) 30 CLR 246.
[7]Ibid 255 (Knox CJ, Gavan Duffy and Starke JJ); cited in Burns v The Queen (1975) 132 CLR 258 by Barwick CJ and Gibbs and Mason JJ at 261.
In this instance, whilst it would probably have been better had the trial judge given a direction similar to that given in Burns, his failure to do so did not, in the circumstances, lead to a mistrial. He gave appropriate general directions to the jury as to how they were to consider the evidence in the case. The applicant’s alleged admission was but a very small part of this evidence. This part of ground 2 should be dismissed.
The second part of this ground related to comments made by the prosecutor in his address concerning the applicant’s failure to mention the presence of the neighbour, WP, until late in his interview with the police, and the prosecutor’s comment that the jury might think it significant that after having sexual intercourse with the complainant, the applicant left the bedroom and went to sleep on the couch in the living room. No exception was taken to the judge’s charge in terms of this ground and no specific direction was sought.
Neither of these matters gives rise to any implied admission. Each of them is simply relevant evidence upon which the jury can ultimately determine the issue of the applicant’s guilt. It is a matter for the jury to give each of them such weight as they consider appropriate. There was no reason why the judge should have given any special direction. Certainly no question of an Edwardsv The Queen[8] direction arises. This part of ground 2 is not made out.
[8](1993) 178 CLR 193.
Finally, it was argued that the trial judge ought to have given a direction with respect to suggestions made by the police to the applicant in his record of interview. The applicant refers to three specific questions. They were:
Q322Do you — is the reason you didn’t ask her why she was so angry at you because you knew that she wasn’t consenting when you had sex with her?
A No.
….
Q354And at no stage during this outburst from [the complainant] have you asked her specifically what she was so angry about?
A No, I thought I’ll give her — — —
Q355 Or why she’s told you to get out of the house.
AI thought I’d give her a bit of time to calm down, give her a ring and then we can sit down because I know she’s been hurt in the past and I thought she’s been — I can’t imagine … … or emotionally … … … … … … because she’s been hurt by ex-husband, ex-boyfriend that used to beat the shit out of her.
There is nothing in these questions by the police which required any specific direction from the trial judge. No exception was taken to his Honour’s charge with respect to these questions and no request was made for any specific direction. This part of ground 2 should likewise be rejected.
Grounds 3 and 8
Neither of these grounds was pressed.
Conclusion
For the reasons given, the applicant should be given leave to appeal and the appeal should be treated as having been instituted and heard instanter and allowed. The conviction and sentence imposed on the applicant should be set aside and there should be an order for a new trial.
BUCHANAN JA:
I agree.
LASRY AJA:
I also agree.
BUCHANAN JA:
The orders of the Court will be as follows:
1. The application for leave to appeal against conviction is granted.
2. The appeal is treated as instituted and heard instanter and is allowed.
3. The conviction and sentence entered below are set aside and it is ordered that the applicant be retried.
There will be a certificate for the applicant pursuant to s 14 of the Appeal Costs Act 1998.
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