Yannic (a pseudonym) v The Queen
[2021] VSCA 150
•4 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0238
| FREDDIE YANNIC (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | PRIEST, NIALL and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 May 2021 |
| DATE OF JUDGMENT: | 4 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 150 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1308 (Judge Smith) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of four charges including two charges of anal rape – Total effective sentence of 9 years and 6 months’ imprisonment with a non-parole period of 5 years and 9 months – Whether verdicts on rape charges unreasonable or cannot be supported by the evidence – Whether substantial miscarriage of justice because jury directed to reason towards a finding on the issue of consent on a basis not founded on the evidence – Whether substantial miscarriage of justice because jury not directed in terms required by Crimes Act 1958 s 37AA – Crimes Act 1958, ss 36, 37, 37AAA and 37AA.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Greg Thomas, Barristers and Solicitors |
| For the Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with Niall JA and the orders he proposes.
NIALL JA:
The applicant stood trial before a jury in the County Court on an indictment containing seven charges. Four of those charges alleged that in 1998 the applicant had raped the complainant with whom he was in an intimate relationship. Three of the alleged rapes took the form of anal rape[2] and the fourth alleged rape involved the introduction of the applicant’s fist into the complainant’s vagina.[3] The applicant was also charged with one charge of indecent assault and two charges of common assault.
[2]Charges 1, 2 and 3.
[3]Charge 5.
At trial’s end the applicant was convicted of four charges[4] and acquitted of the remaining three. Of the rape charges, the applicant was convicted of two charges of anal rape. The applicant was acquitted of the first anal rape and the fourth charge concerning vaginal penetration.
[4]Charges 2 (anal rape), 3 (anal rape), 4 (common law assault) and 6 (common law assault).
Although not the subject of the present applications, the indecent assault charge alleged that the applicant had rammed the end of the barrel of a shot gun onto the complainant’s pubic bone just above her vagina (charge 7). He was acquitted of that charge. The common assault charges involved an allegation that the applicant hit the complainant in the stomach (charge 4) and on another occasion tried to choke her by grabbing her around the neck with both hands (charge 6).
I note that this was the second trial of the charges. For reasons that do not clearly emerge, the jury in the first trial was discharged before the completion of the
trial.[5] On the present trial, a recording of the evidence-in-chief of the complainant given on the first trial was played to the jury. The applicant was permitted to cross-examine afresh.
[5]The applicant faced two trials involving two complainants, H and R (R is the current complainant). A trial commenced in respect of H and was aborted due to illness of that complainant. The trial involving R was then adjourned and was the subject of a first aborted trial and the second trial led to the verdicts the subject of the present application.
Following a plea in mitigation the applicant was sentenced to total effective sentence of 9 years and 6 months’ imprisonment and a non-parole period of 5 years and 9 months was fixed.
The applicant seeks leave to appeal his convictions on the two rape charges and the sentence that was subsequently imposed.
In his application concerning his conviction, the applicant seeks leave to bring forward three grounds. They are:
1.The verdicts on charges 2 and 3 are unreasonable or cannot be supported having regard to the evidence.
2.A substantial miscarriage of justice was occasioned by the jury being directed to reason towards a finding on the issue of consent on a basis not founded on the evidence, in that:
(a) A s37AAA(d) Crimes Act 1958 direction was given in circumstances where there was not positive evidence that the complainant did not say or do anything; and
(b) The Jury was directed erroneously that if it found that the complainant did not say or do anything to indicate free agreement it ‘must’ find that she did not consent.
3.A substantial miscarriage of justice was occasioned by the failure to direct the jury in the terms required by s 37AA of the Crimes Act 1958.
The facts
The complainant met the applicant in 1997 when he was living at the Nowa Nowa Caravan Park. In around September of that year, the complainant and the applicant commenced a relationship and the applicant moved into the complainant’s home in Nowa Nowa.
In her evidence, the complainant said that in the winter of 1998 she and the applicant went to Marlo to visit the applicant’s parents’ place while his parents were in Queensland. They stayed there for approximately one month to six weeks. It was in Marlo that the first incident of anal penetration occurred. The complainant went on to describe two further incidents of anal penetration which occurred at her home in Nowa Nowa after they had returned from Marlo.
Given the arguments presented in this Court, it is necessary to set out the evidence given by the complainant in relation to the three acts of penetration. It is convenient to do so verbatim, with emphasis added.
Counsel:… On the first night that you were there can you tell us just what happened between you and the accused man?
Complainant: I — it would’ve been — I thought that it might have started off to be a general sexual liaison and as we’re well sort of moving into it and then I realised that it wasn’t just gonna be a general intercourse um, and I flipped out of the way, ah, and — and it turned out that he wanted to have anal sex and I didn’t want to at all.
Counsel: I don’t mean to be rude when I – – –?
Complainant: Yeah.
Counsel:– – – ask you questions, it’s really to help us follow what you’re telling us?
Complainant: Sorry.
Counsel: When you said you didn’t want to do that, did you do or say anything to him when you learned that he wanted anal sex from you?
Complainant: I said I don’t — I don’t want to do this, um, why, but I didn’t get any answers, there was no response at that. And — and I just thought well best try and get it over and done with and — and — and maybe it won’t happen again. Because I wasn’t — I wasn’t — I wasn’t game enough to say an outright no um, because I’d been accused and – – –
Counsel: If you can bear with me, I’m sorry but – – –?
Complainant: Yeah.
Counsel:I have to ask you questions in a particular way, you’d understand that?
Complainant: Oh yes, yeah.
Counsel: You didn’t want it?
Complainant: No.
Counsel: You said you didn’t say an outright no?
Complainant: No.
Counsel: But what happened after that?
Complainant: I went along with it as best I could manage to cope so that — because I was too terrified — I was too frightened not to — of repercussions.
After asking the complainant to confirm that by anal sex she meant penetration of her anus by the applicant’s penis, the evidence continued:
Counsel:… And are you able to tell us during that act of anal intercourse whether there were any preparations made?
Complainant: Oh, he said get the jar of oil, which is this sort of face cream that was there and use that to try and help things along. Ah, yeah, and just tried to — yep?
Counsel:Whereabouts in the house did that act of anal intercourse take place?
Complainant: It was in the spare bedroom that we used when we stayed at his parents’ place.
Counsel:Thank you. Are you able to tell us how you felt physically when the intercourse took place, or shortly afterwards?
Complainant: Um, it was quite a deal of pain. I — and there was some bleeding. Um, there was a bit of cleaning up to do afterwards. I was very, very unhappy, and, yeah – – –
Counsel:Was that the only occasion during your relationship you had anal intercourse with him?
Complainant: No. There was two other occasions later on.
The complainant then said that the two further occasions occurred after they had returned to Nowa Nowa. The evidence then addressed those two incidents:
…
Counsel:Can you tell us about the first one. And then I’ll ask you to tell us about the second one. Dealing with the first one, whereabouts, in what room, or area, of the farm did that occur?
Complainant: In the room that we occupied in the front (indistinct words) bedroom that we’d occupied all the time.
Counsel:And how did it come about on that occasion that you had anal intercourse?
Complainant: It start off with — or we’d start off — and it looked like it was going to be a general intercourse, but — or sexual liaison, but then it changed around and sort of, I would ask do we have to do it, do we have to do this. I don’t really want to do this. And I really didn’t get an answer until the next time that, oh, it’s because nobody else has been there before. It was just — it was just so demeaning. And I was too frightened to really just outright say I don’t want — I’m not going to do this.
Counsel:You told us, describing what happened up at Marlo, that there was some oil or something used as a lubricant?
Complainant: Yes.
Counsel:With respect to the next two occasions of anal intercourse, are you able to tell us whether any lubricant was used for either or both of those occasions?
Complainant: Ah, there was. And when it was suggested that we get the oil pot, and I went, oh, no, and this is going to happen again. Um, yeah. It was pretty — it was a pretty final sort of an outcome. Horrible.
Counsel:Did you on any occasion of the three instances you’ve told the ladies and the gentlemen of the jury about tell him that you wanted to have anal intercourse?
Complainant: No way.
Counsel:When, on those occasions, he told you he wanted to have anal intercourse with you, what was your reaction to that?
…
Counsel:Yes. On any occasion when you became aware that he wanted to have anal intercourse with you, what was your reaction to that?
Complainant: I would say, do you — why do we have to do this? I don’t really want to. I just don't want to do this – – –
Counsel: (Indistinct words)?
Complainant: without — I wasn’t — I was too frightened to say an outright, blank, no, I won’t do it.
Cross-examination
In relation to the first occasion in Marlo, the complainant said in cross-examination that she and the applicant began becoming intimate and he asked her to turn over onto her stomach for what she thought would be vaginal intercourse ‘but then it changed and I tried to slip out of the way and then I realised what was happening and — and said I don’t want to do this’. It was put to the complainant that she passed the applicant some baby oil, to which a non-responsive answer was given. She agreed that she felt the applicant apply lubricant to her before the act of penetration occurred. It was put to the complainant that she didn’t say ‘No. Stop it’, to which she answered: ‘I couldn’t say that. You wouldn’t be game enough to say no, but I did say I didn’t — “I don’t want to do this. Why do we have to do this?”’.
In relation to the two further occasions of anal penetration, it was put to the complainant that there was ‘sexual engagement’ between the two of them and it was decided, without much discussion, to engage in anal penetration, which occurred following the application of lubricant and without the complainant saying ‘no’ or anything like that. To that proposition, the complainant responded: ‘You couldn’t say an outright “no”, but I did try and say “I don’t want to do this. I don’t like it. Why do we have to do this?”’. She said that she did not say ‘no’ because she ‘would have got thumped probably’. Returning to the topic, the complainant said: ‘I would have said I don’t want to do it, but I would not have said an outright no’. When it was put to her that she was speculating as to what she said, she replied: ‘No, I’ve — I have always said I don’t want to do this, do we have to do this.’
The judge’s charge to the jury
The judge reminded the jury that the applicant faced four charges of rape. Charges 1, 2 and 3 were allegations of anal rape and charge 5 alleged that the applicant forcibly penetrated the complainant’s vagina with his fist. The defence in relation to charge 5 was that the incident did not occur and the applicant was acquitted of that charge so the directions in relation to it can be put to one side.
The judge instructed the jury that there were four elements to the charge of rape of which they had to be satisfied beyond reasonable doubt: that anal penetration had occurred; that the penetration was intentional; that the complainant did not consent to the sexual penetration; and that the applicant was aware that the complainant was not consenting or that she might not be consenting.
In relation to charges 1, 2 and 3, the judge told the jury that the fact that there had been anal sexual penetration was not in issue. The applicant accepted that anal intercourse took place on three occasions but said that it was consensual in nature. Similarly, the judge instructed the jury that there was no issue that the penetration was intentional and that the second element was satisfied.
In relation to elements 3 and 4, which deal with consent, the judge instructed the jury that the prosecution must prove that the complainant was not consenting at the time the sexual penetration occurred. In that respect, the judge instructed the jury that consent means ‘free agreement’.
The judge went on to describe a number of circumstances where a complainant ‘is deemed not to freely agree or consent to the sexual penetration involved’. He said that those circumstances include ‘where the person submits because of force or the fear of force’ or ‘because of a fear of harm of any type to that person’. The judge continued:
If you are satisfied beyond reasonable doubt that any of those circumstances existed here in relation to [the complainant], you must find that she was not consenting. However, you do not need to consider this question only by reference to those matters, those particular examples. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that [the complainant] was not consenting, then that element will be proven.
I interpolate to note that this direction accorded with the combined effect of ss 36, 37 and 37AAA of the Crimes Act 1958. It will be necessary to return to these provisions in due course.
The judge immediately went on to direct the jury on the question of consent in circumstances where a complainant does not say or do anything to indicate free agreement to penetration. That direction was give in purported compliance with s 37AAA(d) of the Crimes Act.
The judge said:
It is also the law that the fact that a person did not say or do anything to indicate free agreement to the sexual act at the time at which the act took place, is enough to show that the accused took place without that person's free agreement.
Let me repeat that. The fact that a person did not say or do anything to indicate free agreement to the sexual act in question is enough to show that the act took place without that person’s free agreement. That means that if you were to accept that [the complainant] did not say or do anything to indicate free agreement to that type, to that anal type of sexual penetration at the time of the act, you must find on that basis that she did not consent to that act.
In an attempt to bring that instruction back to the facts, the judge continued:
Here, [the complainant] gave evidence that she had told the accused that she did not want to have anal sex. I will go to that in a minute, exactly what she said and what she did not say. If you accept that, she did not consent to anal sex. Of course, you would have to consider each of the three anal rape charges alleged by her separately. The fact that she might have consented to one does not mean she consented to them all. The fact that she did not consent to one does not mean that she did not consent to the others.
The statutory provisions
The applicant was charged with four charges of rape in breach of s 38(1) of the Crimes Act. The indictment alleged that each charge occurred between June and December 1998.[6] At the time of the commission of the offence, s 38(1) provided that a person must not commit rape. Section 38(2) prescribed the circumstances in which a person commits rape, relevantly, where he intentionally sexually penetrates another person without that person’s consent while being aware that the person is not consenting or might not be consenting.
[6]Charge 1 was alleged to have occurred between 1 June 1998 and 31 August 1998; charges 2 and 3 between 1 June 1998 and 31 December 1998 and charge 5 between 1 October 1998 and 30 November 1998.
Section 36 of the Crimes Act defined ‘consent’. It stated that for relevant purposes ‘”consent” means free agreement’. That section went on to identify ‘[c]ircumstances in which a person does not freely agree to an act’, including where ‘(a) the person submits because of force or the fear of force to that person or someone else’; and ‘(b) the person submits because of the fear of harm of any type to that person or someone else’.
Between the date on which the acts were committed and the date of the trial, the Crimes Act was amended in relation to jury directions on consent and the accused person’s belief in consent. Those amendments were made by the Crimes Amendment (Rape) Act2007 (the ‘Amending Act’) and applied to any trial that commenced on or after the commencement of the relevant sections of the Amending Act (1 January 2008).[7] Further, s 10 of the Jury Directions Act 2015 provides that part 3 of that Act does not apply to general directions or a direction that the trial judge is required to give, or not to give, under any provision of that or any other Act.
[7]Crimes Act 1958 s 609(1). For completeness, ss 37, 37AAA and 37AA were repealed by s 7(3) of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (‘the 2014 Act’) and the relevant directions were introduced into the Jury Directions Act 2013 to commence on a date to be proclaimed or 1 July 2015. Before they commenced, the Jury Directions Act 2013 was repealed and replaced with the Jury Directions Act 2015. From that date, directions on consent were contained in div 1 of pt 5 of the Jury Directions Act 2015. However, those directions applied to a proceeding that related to a charge for an offence alleged to have been committed on or after the commencement of that division (1 July 2015).
As in force at the time of the trial, s 37 provided:
37 Jury directions
(1) If relevant to the facts in issue in a proceeding the judge must direct the jury on the matters set out in sections 37AAA and 37AA.
(2)A judge must not give to a jury a direction of a kind referred to in section 37AAA or 37AA if the direction is not relevant to the facts in issue in the proceeding.
(3) A judge must relate any direction given to the jury of a kind referred to in section 37AAA or 37AA to —
(a) the facts in issue in the proceeding; and
(b) the elements of the offence being tried in respect of which the direction is given —
so as to aid the jury’s comprehension of the direction.
Section 37AAA was concerned with directions on consent and provided as follows:
37AAA Jury directions on consent
For the purposes of section 37, the matters relating to consent on which the judge must direct the jury are —
(a) the meaning of consent set out in section 36;
(b) that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;
(c)that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting;
(d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement;
(e) that the jury is not to regard a person as having freely agreed to a sexual act just because —
(i) she or he did not protest or physically resist; or
(ii) she or he did not sustain physical injury; or
(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.
Section 37AA was concerned with belief in consent and was in the following terms:
37AA Jury directions on the accused’s awareness
For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must 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 operation of these provisions was considered at some length by this Court in ISJ v The Queen.[8] Before turning to some aspects of the analysis contained in that decision, some observations can be made about the text of s 37AAA. First, paragraphs (a) to (c) are tied back to s 36. As already noted, s 36 both defined consent and set out some circumstances in which a person will not have consented. They include where the person has submitted because of force or fear of force. Section 37AAA(a) to (c) provided for what a jury must be told about the operation of s 36 and explain that where the jury is satisfied beyond reasonable doubt that one of the circumstances in s 36 exists, there is deemed to be no consent,[9] and the jury is obliged to conclude that the complainant was not consenting.[10] In the words of s 37AAA(c), the jury are to be told that they ‘must find that the complainant was not consenting’.
[8](2012) 38 VR 23; [2012] VSCA 321 (‘ISJ’). See also Jabir v The Queen [2010] VSCA 342 (‘Jabir’).
[9]Section 37AAA(b).
[10]Section 37AAA(c).
Section 37AAA(d) was different. It provided that the existence of the relevant fact it identified ‘is enough to show that the act took place without the person’s free agreement’. It is to be remembered that paragraph (d) was concerned with a direction to the jury and the fact to which it refers must be a fact as found by the jury. In other words, the jury is to be told that if they are satisfied that the complainant did not say or do anything to indicate free agreement to a sexual act at the time it took place, that fact is enough to show that the person did not consent.
Of course, just because the fact is sufficient to show an absence of consent, it does not mean that once the jury are satisfied of the fact, they must find that the person did not consent. As a matter of text, the contrast with paragraphs (b) and (c) is obvious and telling.
In ISJ, the Court, in three, non-sequential, paragraphs relied on by the applicant said:
Section 37 provides that it is ‘enough’ in law to make out the element that the act took place without the complainant’s free agreement, that the complainant did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place. However there must be evidence that permits such a conclusion. If there is, it is still for the jury to decide whether they are satisfied that the element has been proved to their satisfaction to the criminal standard.
…
In giving a direction in conformity with s 37(d), that to show that the act took place without the complainant’s free agreement it is enough to show that the complainant did not say or do anything, the trial judge must ensure that the jury understands that the onus of proof remains on the prosecution to establish the facts which in this way make out this element of the offence. The prosecution must establish that the complainant did not say or do anything to indicate free agreement to the sexual act. The absence of any evidence to that effect will not be sufficient to establish those facts unless the account of the complainant of the circumstances in which the offence occurred, if accepted, leads inexorably to the conclusion that there was no free agreement to the sexual act. In circumstances where the possibility of consent is a real issue, there must be positive evidence adduced that the complainant said nothing and did nothing to indicate free agreement. That burden is usually discharged by explicit evidence from the complainant that she did not consent to the act and did not do or say anything to suggest otherwise. In such circumstances, where the complainant gives no evidence as to these matters, their existence cannot ordinarily be inferred to the exclusion of any innocent hypothesis.
…
The jury should have been directed to consider whether the prosecution had satisfied them that the complainant did nothing to indicate free agreement. Attention should have been directed to the fact that the complainant did not describe what occurred in the intervening period following her request and before penetration ‘eventually’ occurred, nor had she said that she did not agree to penetration when it occurred. The directions should have focussed upon the state of the evidence. As a consequence of these deficiencies the trial judge’s directions were inadequate. They failed to relate the evidence to the issue of consent.[11]
[11]ISJ (2012) 38 VR 23, [26], [34] and [37]; [2012] VSCA 321 (Nettle, Redlich and Osborn JJA).
A number of points emerge. First, s 37AAA(d) is not a deeming provision. Second, although paragraph (d) is expressed in the negative: the person ‘did not say or do anything to indicate free agreement’, it is necessary for the prosecution to positively establish that the complainant did not say or do anything to indicate consent. Third, these passages are not expressly directed to the situation in which the complainant gives evidence that she or he tells the accused that she or he was not consenting. Fourth, it is necessary for the directions to focus on the evidence adduced.
The third and fourth points just mentioned require some elaboration.
As to the third point, in Jabir,[12] this Court was concerned with whether a direction under s 37AA was required to be given. Section 37AA was concerned with the direction that must be given if the accused asserts that he or she believed that the complainant was consenting and relates to how the existence and, as part of that exercise, the reasonableness of that belief, is to be approached. A critical issue was whether the reasonableness of the belief was a relevant fact in issue that required the giving of the direction. In that case, the Court explained that:
the obligations arising under s 37 and s 37AA do not extend to directing the jury as to evidence of facts which have not been relied upon or identified during the trial as providing a foundation for the accused’s belief. Such evidence is not relevant to the facts which have been placed in issue.[13]
[12][2010] VSCA 342.
[13]Ibid [51] (Redlich, Mandie and Bongiorno JJA).
The Court made it clear that similar reasoning applies to s 37AAA. They said:
In a case such as the present, where the complainant alleges that she plainly and clearly stated her objection to any degree of any intimacy with either applicant and physically resisted them and the applicants alleged that the complainant clearly expressed her willingness to have sexual relations with each of them and did not resist in any way, the factual bases described in s 36 or s 37AAA(d) were not relevant to any issue. They were not relied upon by either party as bearing upon the question of consent or the applicants’ belief that the complainant consented.[14]
[14]Ibid [56].
Finally, something should be said about s 37(3), which obliged the judge to relate the direction to the facts in issue and the elements of the offence so as to aid the jury’s comprehension of the direction.
Although the obligation to give the direction has been described as procedural in nature, it is an important aspect of the trial process. Section 37(3) required the trial judge to relate the directions required by s 37AAA and s 37AA to ‘the facts in issue’ and to ‘the elements of the offence’. In Yusuf,[15] Winneke P, addressing the provision before the reference to ‘elements of the offence’ was added, but in terms that remain apposite, said:
The section is procedural in nature and the amending words which were added in 1997 were clearly inserted to ensure that only directions relevant to the facts in issue in a particular case were given; and that directions were not given which were superfluous to those facts. It is clear that the amending words add little to the obligations which are imposed by the common law upon a trial judge — namely to give to the jury directions as to such of the law as is necessary to enable them to determine the issues in the case before them and to relate that law to the facts in issue before the jury. This was Sir Leo Cussen’s ‘great guiding rule’ referred to by the High Court in Alford v McGee.[16] This Court has, over the years, constantly reminded trial judges of this obligation.[17]
[15](2005) 11 VR 492; [2005] VSCA 69.
[16](1952) 85 CLR 437, 466; [1952] HCA 3 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
[17](2005) 11 VR 492, 499–500 [15]; [2005] VSCA 69 (citations omitted).
Parties’ submissions
Ground 1
As noted, the applicant submits under cover of ground 1 that the verdicts on charges 2 and 3 are unreasonable or cannot be supported having regard to the evidence.
The applicant submits that there was scant evidence of the circumstances surrounding the penetrations that were the subject of charges 2 and 3. Specifically, although the complainant expressed, in conditional terms, what she would have said, there was no evidence of a lack of consent at the time of penetration because the prosecutor did not adduce evidence of what the complainant actually said or did on each occasion that was the subject of charge 2 and charge 3.
In oral submissions, the applicant’s counsel emphasised the uncertain duration of the time gap, of at least four to six weeks, between the first incident in Marlo and the second and third incidents in Nowa Nowa. The applicant submits that the use of conditional language by the complainant, and the lack of specific detail of the context in which the second and third acts of penetration occurred, meant that there was insufficient factual basis to sustain those convictions. In that respect, the applicant relied on the following observation of this Court in ISJ:
In circumstances like the present, there can be no justification for a failure by the prosecution to obtain explicit evidence from the complainant that she did not consent to the act of penetration and to explore and clarify any conduct of the complainant which might reasonably support a contrary conclusion. It was for the prosecution to negate this possibility of free agreement. In our opinion the prosecution failed to discharge its burden to the criminal standard of proving that penetration was non-consensual.[18]
[18](2012) 38 VR 23, 34 [36]; [2012] VSCA 321 (Nettle, Redlich and Osborn JJA).
The applicant also submits that given the state of the evidence, it was not open to the jury to exclude the hypothesis that the applicant was not aware that the complainant was not consenting or might not be consenting.
The respondent commenced its oral submissions by noting that the fact of anal penetration on three occasions was not in issue at the trial and the real issue was whether the complainant had consented to them. The respondent relies on the evidence of the complainant that on each occasion she said, or would have said, that she did not want to engage in anal intercourse. The respondent submitted that the jury was entitled to accept that evidence.
The respondent submits that it was open to the jury to be satisfied to the criminal standard that the complainant did not consent to anal penetration and that the applicant at least was aware that the complainant might not be consenting. If the jury accepted that the complainant told the applicant on each occasion that she did not want to engage in anal intercourse, then it was open to the jury to convict. The respondent sought to reconcile the acquittal on charge 1 by noting that there was evidence that it was the complainant who fetched the lubricant and that on that occasion she suffered bleeding and pain. In those circumstances, and given there was no evidence that the complainant obtained the lubricant, although it was used, on charges 2 and 3, the jury was entitled to accept her evidence.
Ground 2: Section 37AAA(d) direction
As set out above, under cover of ground 2, the applicant submits that there has been a substantial miscarriage of justice because the judge gave a s 37AAA(d) direction in circumstances where it was inappropriate to do so and the jury was erroneously directed that if it found that the complainant did not say or do anything to indicate free agreement it must find that she did not consent.
The applicant submits that the prosecutor did not adduce positive evidence that the complainant did not say or do anything to indicate consent. Further, the applicant submits that a s 37AAA(d) direction was not appropriate in circumstances where the prosecution maintained that the complainant had positively indicated that she did not consent and the applicant relied on the fact that she had obtained the lubricant in relation to charge 1 and had allowed lubricant to be applied to her as an anterior step to penetration.
Next, he submits that the terms of the direction were erroneous because the judge told the jury that in the event they found that the complainant had not said or done anything to indicate free agreement, they must find an absence of consent.
The respondent submits that the judge was entitled to give the direction under s 37AAA(d) because consent was in issue. The respondent submits that the facts in ISJ were very different because in that case consent was given and later withdrawn. It was in those circumstances that it was important to connect the statements and conduct of the complainant specifically to the time of penetration. Further, in this case, there was evidence from the complainant that she did not consent and did not say or do anything to suggest otherwise.
As to the second complaint, the respondent submits that although the use of the word ‘must’ in the direction was erroneous, in context, there was no misdirection. The jury was told that they had to consider all the relevant evidence, including what she was alleged to have said or done, or not said or not done, at the time of the alleged penetration. Further, there was no substantial miscarriage of justice, a point buttressed by the fact that experienced trial counsel did not object to the direction or seek a redirection.
Ground 3: Section 37AA direction
The applicant submits that a substantial miscarriage of justice was occasioned by the judge’s failure to give the jury a s 37AA direction.
In relation to ground 3, the applicant contends that whether he believed that the complainant was consenting was a matter in issue and the judge failed to give the mandatory s 37AA direction addressing that topic. He submits that defence counsel’s failure to seek a direction was not the product of a considered forensic decision and should not be held against him.
The respondent submits that the trial was run on the question of consent and that although the question of the applicant’s belief was mentioned twice by counsel in his final address to the jury, they were fleeting remarks, and did not put the matter in issue such as to require a s 37AA direction. Again, the respondent submits that there was no substantial miscarriage of justice and the failure of experienced defence counsel to seek a direction was understandable given the defence was focused on what the complainant did in the context of the penetrations.
Consideration
Ground 2
It is convenient to deal first with ground 2.
There are three issues that arise. The first concerns the question whether the judge was required or permitted to give a direction under s 37AAA(d); the second is whether the direction given by the judge was in a correct form; and the third is whether having given the direction, the judge related it to the facts in issue and the elements of the offence as required by s 37(3). In the event that the applicant establishes error in relation to the charge to the jury, it will also be necessary to determine whether it resulted in a substantial miscarriage of justice.
As will be explained, whether or not it was open to the judge to give the s 37AAA(d) direction, the form in which it was expressed was wrong in a most fundamental respect. For that reason, the other two issues assume less importance and ground 2 can be determined without resolving them. Nevertheless, it is appropriate to address them.
As to the first issue, the starting point is s 37. That section provides what the judge must and must not do in relation to the direction. Where it is relevant, the judge must give a direction that reflects the relevant paragraph of s 37AAA and tie that direction to the facts in issue. Where it is not relevant to the facts in issue, the judge must not give the direction.
Each of the paragraphs in s 37AAA are concerned, in one way or another, with whether the person consented to the sexual act. In almost every case, other than sex offences against children, the absence of consent will be a matter that the prosecution will be required to prove as an element of the offence. However, just because consent is an element that the prosecution must establish, it does not mean that invariably each of the directions in s 37AAA will be relevant. For example, if there is no suggestion by the complainant that she or he submitted as a result of force being applied by the accused, it would not be relevant for the judge to tell the jury that in such circumstances the law deems there to be no consent.
It follows that whether the direction is relevant will depend on the issues in dispute at the trial. The ‘facts in issue’ referred to in s 37 are ‘the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence’.[19] It is only in relation to those facts that a judge is required to give directions.
[19]R v Yusuf (2005) 11 VR 492, 502 [18]; [2005] VSCA 69 (Winneke P, Charles and Chernov JJA agreeing); Gul v The Queen [2017] VSCA 153, [37] (Ashley and Priest JJA). See also R v Getachew (2012) 248 CLR 22; [2012] HCA 10.
As explained in ISJ,[20] s 37AAA(d) arises where there is evidence that the complainant did not say or do anything to indicate consent at the time of the act of penetration.
[20](2012) 38 VR 23; [2012] VSCA 321.
In some, perhaps many, cases there may be a dispute as to what the complainant said or did at or near the time that penetration occurred. The accused may claim that the complainant said or did something that indicated consent and the complainant may deny doing those things. In such cases, the jury will need to decide what, if anything, was said or done by the complainant, and if the jury is satisfied that the complainant did not say or do anything that indicated free agreement, then the direction provided for in s 37AAA(d) will be relevant. In such a case, the prosecution, based on that evidence, will advance a positive case that the complainant did not say or do anything to indicate consent. It is hard to conceive of a case where an accused would assert or seek to highlight that the complainant did not say or do anything to indicate consent, especially given that a s 37AAA(d) direction would follow.
The situation is very different when the prosecution case is that the complainant positively communicated to the accused, by words or action, that she or he did not consent to the sexual act. Where a person says that she does not want to engage in sexual intercourse it might be said that the person has not said or done anything to indicate consent. But that is not what s 37AAA is concerned with. So much follows from the reasoning in ISJ and Jabir, which explain that s 37AAA(d) is not concerned with a gap or absence of evidence but with the situation where it is positively asserted that the complainant did not say or do anything to indicate consent. The underlying rational for the provision is built upon the ‘communicative model of sexuality’.[21] It applies where there has not been, by words or action, communication about consent. Plainly enough, the direction gives effect to the principle that consent is not established merely because the complainant did not say ‘no’. However, it is not a fall back where a primary case relying on overt communications by the complainant fails or is not accepted by the jury.
[21]Ibid 30 [22] (Nettle, Redlich and Osborn JJA).
Further, to give a direction under s 37AAA(d) in such cases will often lead to confusion or be unhelpful. For example, if the complainant gives evidence that she told the accused that she did not consent and that is disputed by the defence, the jury will need to resolve that factual issue having regard to the onus born by the prosecution and the standard of proof. In the event that the jury rejects that account, they might disbelieve the complainant on this critical issue and at the same time not be satisfied that anything was said or done by the complainant to indicate free agreement. Given the way the prosecution is framed in such a case, it would be anomalous if the jury were then told that the gap left by rejecting her account could be filled by the application of the direction in s 37AAA(d).
Not only is a judge prevented from giving a direction where it is not relevant to a fact in issue, it would not be possible to comply with s 37(3) in such a case. It is difficult to see how a judge could relate the direction in s 37AAA(d) to a case in which the complainant said that she expressly told the accused that she did not want to engage in the sexual act.
In this case, the prosecution case was that, in respect of each incident of anal penetration, the complainant said that she did not consent. Although the complainant accepted in her evidence that she did not ‘outright’ say ‘no’, the prosecution relied on her evidence in relation to the first incident: ‘I said I don’t — I don’t want to do this’ and in relation to the second and third incidents: ‘I would ask do we have to do it, do we have to do this. I don’t really want to do this’.
It will be recalled that this is how the judge directed the jury when he told them, immediately after giving the s 37AAA(d) direction, that ‘[h]ere, [the complainant] gave evidence that she had told the accused that she did not want to have anal sex’. That observation was the only part of the charge that came close to connecting the s 37AAA(d) direction to the facts. It is impossible to see how that observation explained to the jury how they might apply the s 37AAA(d) direction in this case. If the jury believed the complainant’s evidence that she, in substance, told the applicant that she did not want to engage in anal penetration, then the direction was otiose. If the jury rejected her evidence as to what she said, they were not told how the direction might operate in those circumstances.
In those circumstances, given the prosecution case, s 37AAA(d) was not relevant to a fact in issue and the direction should not have been given. Further, even if the s 37AAA(d) direction were relevant, the judge failed to relate the direction to the facts and give the jury the assistance required by s 37(3).
However, as no objection was taken to the direction, and no redirection was sought, and given my view on the content of the direction, it is ultimately not necessary to determine whether the giving of the direction and the failure to relate it to the facts in issue resulted in a substantial miscarriage of justice.
I turn then to the second issue, concerning the form of the direction given by the judge. The judge told the jury that if they were satisfied that the complainant did not say or do anything to indicate free agreement to the anal penetration, they must find that there was no consent. That was erroneous. Indeed, the respondent accepted that the direction was wrong.
The respondent submits that the error was immaterial; the judge correctly directed the jury on the elements, told the jury they were to consider all the relevant evidence, including what the complainant was alleged to have said or done, or not said or not done, and the error did not give rise to a substantial miscarriage of justice. In order to determine that no such substantial miscarriage of justice occurred, this Court must be satisfied that the erroneous direction on this aspect of consent did not make a difference to the outcome of the trial. [22] I am unable to come to that conclusion; indeed, I am satisfied that convictions on charges 2 and 3 were by no means inevitable.
[22]Baini v The Queen (2012) 246 CLR 469, 479–82 [26]–[33]; [2012] HCA 59 (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v The Queen (2013) 38 VR 659, 677 [85]; [2013] VSCA 25 (Maxwell P, Weinberg and Priest JJA).
Whether the complainant consented to anal penetration on the three occasions was the critical issue in the trial. The belief of the applicant as to consent was raised, but assumed far less prominence in the trial. On any view, the way the evidence was adduced in relation to the three incidents was far from perfect. The evidence in respect of charge 1 was the most detailed, but even that was sparse. The evidence on charges 2 and 3 was scant and relied on the complainant effectively adopting the description of what had occurred on the first occasion, did not separate out incidents two and three (which appeared to have occurred on different days) and was blighted by the repeated use of the conditional ‘would’ to describe what the complainant said or did.
In those circumstances, there was a real risk that the jury would use the reasoning contained in the direction to impermissibly make up for gaps in the complainant’s evidence and feel obliged to find an absence of consent.
The direction that the jury must find an absence of consent was given in relation to both the direction concerning the s 36 matters and the s 37AAA(d) direction. The use of the word ‘must’ was clear and unequivocal and not later qualified or corrected.
I accept that this was not a trial in which the prosecution was saying that the complainant did not say or do anything to indicate consent, however, the giving of the direction in the terms used by the judge had the potential to confuse the jury and lead them to understand that they must find an absence of consent in the circumstances.
In arriving at this conclusion, I have also taken into account the fact that the jury acquitted the applicant on charge 1, which, as I have noted, was the subject of more detailed evidence than charges 2 and 3. In those circumstances, the risk that the jury might have used the direction to make up for a gap in the evidence in relation to charges 2 and 3 was all the greater.
By reason of the erroneous direction, there has been a substantial miscarriage of justice.
Ground 1
The applicant contends that the verdicts on charges 2 and 3 are unreasonable or cannot be supported having regard to the evidence.[23]
[23]Criminal Procedure Act 2009 s 276(1)(a).
The principles that this Court must apply in considering this ground are well established. They emerge from the decision of the High Court in M v The Queen,[24] and have been explained and applied on numerous occasions since.[25] It is enough to recall that the applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the charges for which he was convicted. This Court is required to make its own independent assessment of the evidence. In discharging that task, it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility for determining the guilt of the accused person.
[24](1994) 181 CLR 487; [1994] HCA 63.
[25]Pell v The Queen [2020] HCA 12; R vBaden-Clay (2016) 258 CLR 308; [2016] HCA 35.
The complainant’s evidence in relation to the first incident was that when she realised that the applicant wanted to engage in anal intercourse, she said that she did not want to do it, he told to her to get the lubricant, she did not expressly say she did not want to do it because she was frightened of repercussions and afterwards there was pain and some bleeding. From that account, the jury could infer that the complainant went to obtain the lubricant which was located in another room and returned to the applicant.
In relation to the second incident, the complainant said that she ‘would ask do we have to do it, do we have to do this. I don’t really want to do this.’ The complainant was not asked separately about the third incident but was asked whether on the next two occasions of anal intercourse (being the two incidents at the farm at Nowa Nowa) lubricant was used, to which she answered in the affirmative. She was not asked whether it was she or the applicant who obtained or applied the lubricant.
As already observed, the evidence failed to deal with each incident separately. On the present application, the respondent explained that there were difficulties in adducing evidence from the complainant in part because there were outstanding charges in relation to another person who was known to the complainant and a risk that the complainant would mention these matters in her evidence and that care was required to confine the witness. That may be so. However, the issue here is the adequacy of the evidence that was adduced to sustain the convictions, a question that is not affected by the reason why the evidence was of poor quality or lacking in detail. An appreciation of a witness’ attributes, such as age or cognitive ability, may be relevant to an understanding of what a witness meant, but cannot be used to overcome an absence of evidence.
The significance to be attributed to the failings in the evidence on the second and third incidents is complicated by the fact that the applicant was acquitted on charge 1. The applicant does not contend that the verdicts on charges 2 and 3 are inconsistent with the acquittal on charge 1. To an extent, the different outcome can be explained by the fact that the evidence on charge 1 was to the effect that the complainant obtained the lubricant, knowing that the applicant wanted anal intercourse. That evidence was relevant to both consent and the applicant’s belief in consent. Further, the complainant gave evidence of bleeding as a result of the first incident. The jury might have considered that this meant that the complainant would be unlikely to agree to the same form of intercourse in the future and that it would have brought home to the applicant that the complainant may not want to engage in anal intercourse, whatever the position had been on the first occasion. And, as the jury was told, the fact, if it be the fact, that the complainant consented on the first occasion, did not mean that she consented on later occasions.
Nevertheless, there was, in effect, no separate evidence addressing the elements of the third incident and the evidence relating to the second and third incidents was built on the narrative give in relation to the first. Further, the conditional way in which the complainant’s evidence of what she said or did was expressed, rendered it equivocal.
The evidence in relation to who sourced the lubricant on the first occasion and the pain felt by the complaint as a result of the penetration provides the only points of distinction with the later charges and is the only way the different verdicts returned on charge 1 and charges 2 and 3 can be explained. It would follow that if the jury found that it was the complainant who retrieved the lubricant in relation to charge 2 or charge 3, it would be impossible to reconcile the verdicts.
In my opinion, considering the exiguous state of the evidence on all three charges, and having regard to the acquittal on charge 1, I am satisfied that the verdicts on charges 2 and 3 could only be explained by the jury concluding that the evidence of what the complainant did, or the applicant’s belief, was different in relation to charges 2 and 3 when compared with charge 1. However, the evidence was simply too vague as to what the complainant said or did in relation to the second and third incidents. For example, the evidence does not permit a finding as to who got the lubricant in relation to the second or third incidents, yet this was obviously a critical piece of evidence in relation to charge 1. The complainant did not differentiate between incidents 2 and 3 and importantly, said: ‘when it was suggested that we get the oil pot, and I went, oh, no, and this is going to happen again’. From that evidence, it was impossible for the jury to infer who retrieved the lubricant and, therefore, the jury could not be satisfied that the circumstances in this respect were materially different than those in relation to charge 1.
Even if the jury were satisfied that the complainant did not consent, there was a completely inadequate basis for the jury to find, beyond reasonable doubt, that the applicant was aware that the complainant was not or might not have been consenting to the anal penetration. That was because the state of the evidence about what she said or did on each occasion was so uncertain.
Ground 1 must be upheld.
Ground 3
Given my conclusion on grounds 1 and 2, it is not necessary to determine ground 3. However, as the ground was fully argued it is appropriate to address it. I can do so briefly.
Although the overwhelming focus of the defence case rested on the question of whether the complainant had consented to the three acts of anal penetration that it was accepted had occurred, in his closing address, counsel for the applicant raised the issue of the applicant’s belief as to consent. Counsel told the jury that the issue was consent and the applicant said she was consenting and ‘at the very least he believed that she was’. A little later counsel said that on the complainant’s narrative, she did not outright say ‘no’, and there was ‘a reasonable possibility that he had an honest belief that she was in fact consenting’.
I note that in his record of interview, which was not played to the jury, the applicant denied raping anyone.
The applicant contends that the applicant’s assertion in a record of interview constitutes an assertion that he believed that the complainant was consenting. Further, he submits that there was evidence which supported an inference that he believed the complainant was consenting, including that the complainant passed the applicant lubricant prior to penetration and ‘perhaps, the applicant administered the lubricant to her anus prior to penetration’.
In my view, the issue of the applicant’s belief in consent was sufficiently raised as to enliven the obligation in s 37AA to give a direction conforming to sub-ss 37AA(a) and (b). That was not done. The question whether the failure amounted to a substantial miscarriage of justice is more difficult. It would have required the jury to assess whether the belief existed, being a matter that might be informed by the reasonableness of the belief. The jury would have been directed to consider whether a circumstance in s 36 existed, including whether the manifestations of consent were a product of fear or threat. Further, the jury would have been told to consider whether the applicant took any steps to ascertain whether the complainant was consenting or might not be consenting.
The critical issue of fact on which the trial was run was whether the complainant had, through her words or conduct, voiced her unwillingness to engage in anal intercourse. If the jury were satisfied of those matters to the criminal standard (a matter foreclosed by my analysis in relation to ground 2), there was no
room for a defence based on the applicant’s belief in consent. On the other hand, if the jury rejected the complainant’s evidence, it appears inevitable that the applicant would have been acquitted on charges 2 and 3, as he was on charge 1.
In the circumstances, were it standing alone, I am not persuaded that any failure to give a direction under s 37AA amounted to a fundamental miscarriage of justice.
Conclusion
I would grant leave to appeal, uphold grounds 1 and 2, set aside the convictions on charges 2 and 3 and direct that acquittals be entered on those charges. The sentences on those charges fall away. The applicant was sentenced to 6 months’ imprisonment on each of charges 4 and 6 (the common assault charges). Three months of each sentence was ordered to be cumulative on charge 2, which was the base sentence. There is no application for leave to appeal against the sentences imposed on charges 4 and 6, although the orders for cumulation will be set aside. No orders for cumulation will be made. The total effective sentence will be 6 months’ imprisonment.
SIFRIS JA:
I agree with Niall JA and the orders he proposes.
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