- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v FAV  QCA 299
CA No 342 of 2018
DC No 633 of 2017
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 29 November 2018 (Williamson QC DCJ)
17 December 2019
22 October 2019
Fraser JA, Mullins AJA and Henry J
The appeal is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial of two counts of rape – where the trial judge directed the jury as to mistake of fact in relation to count 2 but not count 1 – where the only evidence that could be relied upon for mistake of fact was that of the complainant – whether the trial judge should have directed on mistake of fact in relation to count 1
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where the appellant was convicted after trial of two counts of rape – where the trial judge directed the jury as to mistake of fact in relation to count 2 but not count 1 – where the appellant’s trial counsel did not address the jury on the defence of mistake of fact in respect of count 2 – whether the trial judge unduly restricted the appellant’s trial counsel’s address to the jury in relation to mistake of fact in respect of count 2
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted after trial of two counts of rape – where the trial judge directed the jury as to mistake of fact in relation to count 2 but not count 1 – where the appellant’s trial counsel did not address the jury on the defence of mistake of fact in respect of count 2 – whether the appellant’s trial counsel’s failure to address on mistake of fact amounts to a miscarriage of justice
CRIMINAL LAW – EVIDENCE – CORROBORATION – DIRECTIONS TO JURY – ADEQUACY OF WARNING – LIES BY ACCUSED – where the appellant was convicted after trial of two counts of rape – where for each count of rape an alternative charge of unlawful carnal knowledge was open on the indictment – where the trial judge held that an Edwards direction was not appropriate – where the trial judge gave a direction that any lies in the appellant’s record of interview went to his credit only – where the appellant’s trial counsel did not seek a redirection – whether the trial judge’s direction on lies amounts to an error of law
Criminal Code (Qld), s 24, s 348, s 619
Barca v The Queen (1975) 133 CLR 82;  HCA 42, considered
Doney v The Queen (1990) 171 CLR 207;  HCA 51, cited
Edwards v The Queen (1993) 178 CLR 193;  HCA 63, considered
Loveday v Ayre; Ex parte Ayre  St R Qd 264, cited
Masciantonio v The Queen (1995) 183 CLR 58;  HCA 67, cited
McKell v The Queen (2019) 264 CLR 307;  HCA 5, cited
Pemble v The Queen (1971) 124 CLR 107;  HCA 20, cited
R v Cutts  QCA 306, considered
R v Makary  2 Qd R 528;  QCA 258, considered
R v Millar  1 Qd R 437;  QCA 276, considered
R v Mitchell  2 Qd R 142; (2007) 174 A Crim R 52;  QCA 267, cited
R v Muratovic  Qd R 15, cited
R v I A Shaw  1 Qd R 641;  QCA 45, cited
R v Sheppard  QCA 342, distinguished
Stevens v The Queen (2005) 227 CLR 319;  HCA 65, considered
Stingel v The Queen (1990) 171 CLR 312;  HCA 61, cited
Taiapa v The Queen (2009) 240 CLR 95;  HCA 53, cited
Van Den Hoek v The Queen (1986) 161 CLR 158;  HCA 76, cited
E P Mac Giolla Ri with R C Taylor for the appellant
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: The appellant appeals against his convictions upon two counts of rape.
Like Henry J, I agree with the reasons given by Mullins AJA for concluding that grounds 2 and 4 should not be accepted. Henry J would uphold grounds 1 and 3. Mullins AJA would reject those grounds.
In my respectful opinion ground 1 should be rejected. I agree with Mullins AJA’s reasons for that conclusion but will add some reasons of my own.
Ground 1 contends that there was a miscarriage of justice because the trial judge failed to leave mistake of fact to the jury on count 1. The reference to a mistake of fact is to the provision in s 24(1) of the Criminal Code (Qld) that “[a] person who does … an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act … to any greater extent than if the real state of things had been such as the person believed to exist.”
In R v Millar, McPherson JA explained that a trial judge is obliged to direct a jury about s 24 in a case of this kind if there is “material on which the jury could legitimately have entertained a reasonable doubt about … whether the appellant honestly and reasonably believed that the complainant had consented”.
Three points should be made about this topic. First, the “consent”, the absence of which is an element of the offence of rape, is defined in s 348(1) of the Code to mean “consent freely and voluntarily given by a person with the cognitive capacity to give the consent.” (By s 348(2), consent is not freely and voluntarily given if it is obtained by, amongst other means, force, threat, or intimidation.) As Mullins AJA explains with reference to authority, a consenting state of mind is insufficient; “consent” must be “given”. Secondly, the word “legitimately” in that test encompasses acknowledgement of the jury’s role as the sole arbiter of fact; as Henry J concludes, in deciding whether s 24 should be left to the jury, the evidence should be analysed in a way that is most favourable to the appellant. Thirdly, an issue about s 24 is not raised unless the posited belief is “reasonable” in addition to being “honest”. The word “reasonable” adds an objective requirement. Section 24 has no potential scope for application if the material is insufficient to justify a jury in legitimately entertaining a reasonable doubt whether any belief by the appellant that the complainant had given consent was a reasonable belief.
The prosecution case depended upon the complainant’s evidence. The appellant did not give evidence. In a police interview, evidence of which was tendered in the Crown case, the appellant said he could not recall ever having been alone with the complainant, he only ever spoke to her about casual things or stupid stuff, he was pretty sure the only time she had been in his room was when she sat down next to another person with whom the appellant was then playing PlayStation, the appellant had not had any sexual contact with the complainant, and he had not come close enough to touch her.
The evidence at trial is described in detail in my colleagues’ reasons. For present purposes the significant evidence was given by the complainant. In the following statement of her evidence I omit reference to statements which, upon the view of the evidence most favourable to the appellant, may have concerned only the complainant’s uncommunicated state of mind.
On the occasion when count 1 was alleged to have been committed, in the early hours of 16 August 2016, the complainant was sitting around a fire in the back yard of her uncle’s house with the appellant and others, including at least the appellant’s sister and the complainant’s brother. After the others went inside the appellant tried to pull the complainant onto his lap. Eventually the complainant sat on his lap. The appellant kissed her neck for about two seconds, causing a “hickey” on the complainant’s neck.
The appellant then picked the complainant up and carried her around to a side of the house near the garage and laundry door. The appellant put the complainant down so that she was standing on the ground. The complainant tried to walk away. The appellant grabbed the bottom of her shorts and pulled her back into him. She said “no”. The appellant said “lay down”. She just stood there. The appellant “held onto my right forearm and sort of pulled me, and I just dropped to the ground on the grass”. In cross examination, the complainant said that the appellant grabbed the bottom of her shorts, “pulled me in and then he’s probably pulled me down”. The complainant responded “yes” when defence counsel suggested in cross examination “he pulled you down … did you kind of just give in to him pulling at your shorts and then just dropped to the ground?” The complainant stated that she sat down with her knees pulled up to her chest. The appellant pulled her legs straight and took off her clothes. After the appellant had removed the complainant’s clothes he opened her legs, bent them up, and lay down on top of her. The appellant struggled to get his penis inside the complainant’s vagina. Whilst penetrating her genitalia he kissed her neck and squeezed her breast.
The complainant heard the back screen door open. The appellant asked whether she had heard that. She did not respond. He withdrew his penis. They both quickly got dressed. The complainant did not shout or scream for help.
The complainant said that she never gave the appellant permission or participated.
Although ground 1 concerns only count 1, I will also summarise the evidence of the complainant about count 2. Some of that evidence is submitted to bear upon the application of s 24 in relation to count 1.
The act charged in count 2 was alleged to have occurred in the early hours of the morning two days after count 1. As the complainant came out of the toilet near his bedroom the appellant was standing outside his bedroom door. He asked her to come into his bedroom for a second. The complainant said, “okay but why” and the appellant said, “just come in”. The complainant went into his room and sat on the corner of his bed. The appellant asked the complainant whether she wanted to “do it again”. She replied “I don’t know”. The appellant shut the bedroom door quietly. He said that it was too late for the complainant to change her mind. The complainant crawled backwards across the bed until her back was against the bedhead and she could not go further. She had her knees up to her chest, one hand gripping onto the bed sheets and the other hand gripping the side of the bed. She was shaking. The appellant straightened the complainant’s legs and undressed her. He grabbed her by the calves and pulled her down so she was lying on her back. He pushed her shins to bend up her knees. He then propped himself up over the complainant. The complainant turned her head away when the appellant tried to kiss her on the lips and he kissed her neck. The appellant struggled a bit to get his penis inside her vagina. He had sex with her. The appellant asked the complainant whether she wanted to keep going. She said “no”. The appellant stopped having sex with her. The complainant put her clothes back on and left the room.
Let it be assumed in favour of the appellant both that the appellant and the complainant were on friendly terms and that, after the other people present at the fire had left, the complainant voluntarily sat on the appellant’s lap and apparently acquiesced in the appellant kissing her on the neck. Of itself, evidence to that effect would be manifestly incapable of raising a question whether the appellant honestly believed, much less reasonably believed, that the complainant gave her consent to the subsequent penile penetration of her genitalia.
Upon the view of the complainant’s evidence about the events that followed which is most favourable to the appellant, that evidence suggests that the complainant communicated to the appellant that she did not consent to any sexual act by him:
After the appellant carried the complainant from the fire to the side of the house, the complainant started to walk away.
Then the complainant said “no” when the appellant grabbed the bottom of her shorts and pulled the complainant back to him.
Then the complainant twice rejected the appellant’s request to lie down:
- Initially the complainant rejected that request by instead remaining standing.
- When the appellant subsequently pulled the complainant to the ground, or she dropped to the ground after he had started to pull her down, the complainant rejected that request by sitting on the ground with her knees pulled up to her chest.
Thereafter, the complainant did not co-operate with the appellant whilst he manipulated her body, took off her clothes, and penetrated her genitalia with his penis after he initially struggled to do so.
Defence counsel did not put to the complainant in cross-examination that any particular part of her evidence upon those matters was incorrect. Defence counsel did ask questions about aspects of the complainant’s account but he did not challenge that account or the consistent answers given by the complainant in response to the questions. At the end of the cross-examination defence counsel asked whether the complainant’s “story” about the appellant taking her around to the side of the house and having sex with her was “just not true” and whether she was not telling a “false story”. The complainant reaffirmed the truth of her evidence. She rejected a similar suggestion in relation to count 2. Those suggestions reflected the appellant’s case which, in circumstances in which the appellant did not give evidence – naturally focussed upon his statement to police denying that he had any sexual contact with the complainant.
It remained within the province of the jury to decide whether or not to accept or reject the complainant’s evidence or parts of it. Rejection of part of the complainant’s account, however, would leave merely the absence of evidence upon that particular point. Thus, for example, if the jury did not accept any of the evidence I have summarised (save for the evidence upon which the jury acted in finding that the appellant penetrated her genitalia with his penis without the complainant’s consent), upon the most favourable view of the evidence, the jury could find that the complainant had not manifested her dissent. That would be an insufficient basis to require s 24 to be left to the jury: see R v IA Shaw.
Contrary to the appellant’s submission, the complainant’s evidence that the appellant subsequently asked her whether she had heard the back screen door open did not give rise to an issue whether the appellant honestly and reasonably believed that the complainant consented to what had occurred. There is no evidence that the complainant said anything in response to the appellant’s question. If the question itself amounted to an indication that the appellant believed the complainant had consented, the evidence supplied no objective support for an argument that such a belief might have been reasonable at the time when the appellant penetrated the complainant’s genitalia with his penis before he asked the question. The same is true, in my respectful opinion, of the conduct described in the complainant’s statement concerning count 2. There was nothing in the material to raise a question whether, during the preceding period in which the relevant act in count 1 occurred, any belief the appellant held that the complainant consented was a reasonable belief.
Ground 3 contends that there was a miscarriage of justice because the trial judge unduly restricted defence counsel’s ability to argue before the jury the defence of mistake of fact in relation to count 2; alternatively, there was a miscarriage of justice because of defence counsel’s failure to address the jury in relation to mistake of fact. I am not persuaded that the trial judge’s statements which are the subject of ground 3 involved any miscarriage of justice. I agree with the reasons given by Mullins AJA upon this issue. The following additional reasons are intended to be read in the context of her Honour’s analysis.
The trial judge made clear his Honour’s view that whilst defence counsel was entitled to make submissions to the jury upon the question whether the Crown had discharged its onus of proving beyond reasonable doubt that the appellant did not have an honest and reasonable but mistaken belief that the complainant consented to the act charged in count 2, it was not open to defence counsel to make a positive submission to the jury that the appellant in fact held such a belief.
Any submission by defence counsel about s 24 in relation to count 2 necessarily would have been based nearly entirely upon the complainant’s evidence. The evidence of the appellant’s statements in his police interview are inconsistent with his having held the belief described in that section. Consistently with that evidence there was no specific challenge in cross-examination to any particular part of the complainant’s evidence which bears upon this issue. Allowance must be made for the jury’s entitlement nevertheless to reject or accept different parts of the evidence, but there would have been an obvious lack of force in a positive submission by defence counsel that the appellant held a belief that was not merely honest but also reasonable, that the complainant gave her consent to the appellant penetrating her genitalia with his penis as charged in count 2.
That and any other submission invoking reliance upon s 24 - including a submission of the kind the trial judge made clear was open to defence counsel - would create another difficulty for the appellant’s defence. The postulated submission would require the jury to consider the possible application of s 24 in a context that, contrary to the evidence of the 20 year old appellant’s detailed denials in his statement to police, he had penetrated the genitalia of a 15 year old child without her consent. Such submission had the potential to undermine defence counsel’s main submission that, consistently with the appellant’s statement, the Crown had failed to prove beyond reasonable doubt that the appellant had engaged in the conduct described by the complainant. That submission appears unpersuasive in light of other evidence, particularly the medical evidence, but a submission invoking s 24 appears both unpersuasive and burdened by the forensic disadvantage I have described. Upon an objective analysis which takes into account the way in which defence counsel conducted the trial, his omission to address mistake of fact in relation to count 2 was the result of a reasonable forensic decision.
MULLINS AJA: The appellant was convicted after trial of two offences of rape. He appeals his convictions on the following grounds:
- There was a miscarriage of justice because the learned trial judge failed to leave mistake of fact to the jury on count 1.
- There was a miscarriage of justice because the trial judge failed to adequately direct the jury as to the evidence about the fight the appellant had with his stepfather when directing the jury as to mistake of fact on count 2.
- (a) There was a miscarriage of justice because the trial judge unduly restricted defence counsel’s ability to argue before the jury the defence of mistake of fact in relation to count 2.
Alternatively, there was a miscarriage of justice due to defence counsel’s failure to address the jury in relation to mistake of fact.
- The trial judge made an error in a matter of law in that he failed to direct the jury appropriately in relation to lies the appellant is alleged to have told.
The circumstances that resulted in the charges
In August 2016 the complainant was 15 years and five months old and the appellant was 20 years old. The complainant together with her siblings and their mother who lived interstate were visiting the appellant’s family and staying at their home for two weeks between 4 and 18 August 2016. The complainant’s mother and the appellant’s stepfather are siblings. The complainant and the appellant were described as step cousins. The complainant’s siblings comprised two elder brothers who were aged 16 and 19 years at the time of the visit and four younger children aged between three and six years. The appellant’s sister vacated her bedroom, so that the complainant’s mother could occupy it with her younger children. The complainant, her elder brothers and the appellant’s sister slept in the lounge room during the visit. There was varying evidence about where the appellant slept during the visit. He and his mother said he slept in his own room, the complainant’s mother said he slept in the lounge room, the complainant’s brother said the appellant started sleeping in the lounge room during the second week of the visit, and the complainant said the appellant slept on a recliner chair in the lounge room, but said later in her evidence that he usually slept in his bedroom and not the lounge room.
On about day two of the visit, the appellant fought with his stepfather, punching him and threatening him with a butter knife. The complainant observed this fight. The police were called and the appellant was taken away to the hospital and returned the next day.
The complainant’s evidence on count 1 was as follows. It was about 2am to 3am on 16 August 2016. The complainant and appellant were in the backyard alone, sitting around a fire. He tried to pull her over onto his lap. She sat on his lap and he started kissing her neck. She did not respond. He picked her up and carried her around the side of the house. She did not stop him. When he put her down, she went to walk away. He grabbed the bottom of her shorts and pulled her back to him. She said “no” and he said “lay down”. She did not do anything and just stood there. He held her arm and sort of pulled her and she dropped to the ground. He took off all her clothes and had sexual intercourse with her. She did not stop him from doing it or say anything. She was frozen and afraid of the appellant due to the fight with his stepfather. He kept kissing both sides of her neck and squeezed her left breast. During intercourse, she heard the back screen door open, he said “did you hear that?”, intercourse ended, and they both quickly got dressed.
The complainant’s evidence on count 2 was as follows. Between 2 am to 3 am on 18 August 2016, the complainant went from the lounge room to the toilet in the hallway where the appellant’s bedroom was. On her return, she was walking past the appellant’s bedroom door. He asked her to come into his room. She said “okay but why?”. He said “just come in” and she entered the room and sat on the bed. He said “Do you want to do it again?”, she replied “I don’t know”. He shut the door and said “it’s too late to change your mind now”. The room was pitch black. The complainant moved up the bed as far as she could. She froze again. The appellant pushed on her knees to straighten her legs. He undressed her and then pulled her legs until she was lying flat. He tried to kiss her on the lips, but she turned her head, and he kissed her on the neck instead. He had sexual intercourse with her. She did not say “no” or physically stop him, because she was scared. He said “Do you want to keep going?”, she said “No” and he stopped having intercourse with her.
The complainant reported the incidents to her parents after her family had returned home. As a result, the complainant made a written statement to the police dated 1 September 2016 (the written statement).
The appellant participated in a relatively short record of interview on 10 October 2016 during which his mother was present as a support person. He denied any sexual contact with the complainant.
The course of the trial
The written statement was read to the jury and the complainant’s evidence that was pre-recorded on 16 May 2017 was played to the jury. The complainant said in the written statement that the appellant had returned to the house after being taken away by police after the fight with his stepfather and the appellant said he could not remember anything. The following was elicited from the complainant during cross-examination in the pre-recorded evidence. The complainant was a bit afraid of the appellant after the incident with his stepfather, but after a couple of days had passed after that incident, she got on all right with the appellant. They were friendly towards each other. The appellant started sending text messages to her. She did not delete any messages between herself and the appellant from her phone. She got the hickey on her neck the first time the appellant had sexual intercourse with her. She did not have that hickey before she arrived for the visit. She was “quite sad” to return home at the end of the visit.
The complainant added the following further details about the incident that was the subject of count 1 in the following exchange:
“Did – or how did you come to be on the ground?---He – because I was going to go back, he grabbed the bottom of my shorts and then pulled me in and then he’s probably pulled me down.
He – he pulled you down. Did – did you kind of just give in to him pulling at your shorts and then just dropped to the ground?---Mm.
Yes, all right, and then when you were on the ground, how were you positioned? Were you sitting, kneeling, lying down?---I had my knees to my chest.
All right, and it – was he standing or sitting or doing something else?---I think he was on his knees.
So he – he was on his knees, and did pull your shorts from – while he was on his knees?---Yes.
And then you came down and you were in a sitting position and you said you pulled your knees up to your chest?---Because he pulled my knees down as he was pulling down my shorts.”
After further questioning about the order in which the complainant’s clothes were removed and that the appellant had pulled down his pants, the following exchange occurred:
“And then you say he laid on top of you, did he?---Yep.
And what is it you remember happened then?---And then he put his penis in my vagina.
And – and how long did he do that for?---A few minutes.
And was he doing anything while he had his penis in your vagina?---He was kissing my neck.
And he was just lying on top of your kissing your neck while his penis was in your vagina?---Yes.”
In relation to the incident that was the subject of count 2, the complainant explained that the appellant had been in the lounge room, when she had got up from the lounge and went to the toilet, but when she walked out of the toilet, he was standing outside his bedroom door. When asked why she did not just walk away, she responded that she was not thinking, she was tired and she was about to go to bed, after she finished at the toilet. After the sexual intercourse had taken place, the complainant got dressed and left the appellant’s bedroom and went into the bedroom where her mother was staying, where she had been told by her mother on the day following the first incident to sleep.
When questioned about whether there was any other physical closeness between the appellant and her, the complainant said there was not, apart from “punching at each other as a joke … [b]efore the first time” which was a bit of friendly mucking around.
The complainant’s mother gave evidence. During the day on 16 August 2016, the complainant’s mother asked the complainant if she had been receiving texts from the appellant and she confirmed that she had. When her mother asked her to explain what those texts were, she could not explain them and said she had deleted them. The complainant’s mother subsequently searched the telephone and could not find any messages between the complainant and the appellant. On the evenings of 16 and 17 August 2016, the complainant’s mother had the complainant sleep in the bedroom that the complainant’s mother was staying in. At one stage the complainant’s mother observed that “it looked as if there was tension there” between her daughter and the appellant who were in the lounge room when the complainant’s mother went to bed.
The complainant’s elder brother who was closest to her in age gave evidence. On one of the nights that he and the others were talking around a fire in the backyard, the complainant was present. When the brother went inside the house to watch television at about 1am, the complainant and the appellant remained by themselves around the fire. After he had been inside for about half an hour to an hour, the brother decided to roll a smoke and went outside, opening the glass sliding door. He had not seen his sister or the appellant come inside during the time he was inside. When he returned outside, the fire was out and they were gone. He next saw the complainant in the lounge room. A few days prior to that night of the fire, he had observed that his sister had two “hickeys” on her neck. She did not have them before they left home for their visit.
The appellant’s mother gave evidence that on the day the complainant and her family were leaving after their visit, the complainant said she wanted to come back and visit again at Christmas time.
The complainant was examined by forensic paediatrician Dr Tee on 23 August 2016. Dr Tee observed there was a full thickness laceration of the hymen at the 8 o’clock position that extended the full thickness of the hymen. There was also some slight swelling and inflammation of the hymeneal tissue and some tissue slough at the margins of this laceration. Dr Tee reviewed the complainant again on 31 August 2016 when she observed the laceration had healed, the swelling and inflammation had resolved, and there was a residual defect in the hymen where the laceration had previously been seen. Dr Tee expressed the opinion that tears to the hymen like the one she had observed on the complainant are caused by blunt force trauma to the hymen and were in keeping with penile vaginal penetration that would have occurred within days of the first examination on 23 August 2016.
The appellant’s record of interview was played to the jury and the appellant did not otherwise give or call evidence at the trial. The appellant disclosed at the commencement of the interview that he suffered from anxiety and depression. During the record of interview, apart from denying ever having sexual intercourse with the complainant, the appellant said he never touched her. When asked about the allegation that he had sexual intercourse with the complainant in his bedroom, he said that did not happen, because the complainant’s mother was staying in his sister’s room which was nearby and she always had the door open. When asked to tell the police officers what he knew about the complainant as a person, the appellant said he never really spoke to the complainant about anything or “just like casual things”. When asked to recall any conversations he had with the complainant, the appellant said nothing stood out and “like she was mucking around with everyone”. The appellant said the complainant had been in his bedroom on one occasion when she sat down next to her eldest brother who was playing the PlayStation with the appellant. When asked about the text messages he sent to the complainant on the last day of the visit, he could not remember and said “it was probably just good bye, speak to you all like later”. The appellant had wiped his phone. At the conclusion of the interview, when he was given an opportunity to describe any sexual contact he had with the complainant, he said “I did not even come close enough to touch her”. (Because of the denial of sexual contact, the appellant was not questioned about the details of the two incidents that had been given by the complainant in the written statement.)
The appellant’s counsel at trial conducted the defence on the basis the appellant denied that he had sexual intercourse with the complainant, but also on the basis that the prosecution either could not prove lack of consent beyond reasonable doubt or could not exclude mistake of fact as to consent beyond reasonable doubt.
The trial judge had difficulty with defence counsel’s proposal to address the jury on the basis of the alternative defence of mistake of fact, because of his Honour’s concern that the mistake of fact defence was inconsistent with the appellant’s instructions. The trial judge indicated he had no difficulty with the defence counsel addressing the jury on the basis the prosecution had not discharged its burden in relation to the defence of mistake of fact. The trial judge ruled that, if the submission were made by defence counsel in positive terms that the jury could be satisfied on the evidence the appellant did have an honest and reasonable mistaken belief, the trial judge proposed to comment in the summing up to the jury about the inconsistency between that submission and the case run on behalf of the appellant based on the appellant’s version.
The appellant’s trial counsel urged the trial judge to leave mistake of fact as to consent for the consideration of the jury for both counts. The trial judge ruled that in respect of count 1, there was a clear communication by the complainant of a rejection of the appellant’s advances by her saying “No” and there was inaction, an absence of an overt act or an absence of resistance on the part of the complainant after saying “No” that did not fairly raise the defence of mistake of fact and the trial judge would not put it to the jury.
In the light of that ruling, it was appropriate that the appellant’s trial counsel did not specifically address the jury on an alternative case of mistake of fact as to consent in relation to count 1, but the appellant’s trial counsel did not address the jury on mistake of fact as to consent in relation to count 2. The trial judge directed the jury on mistake of fact as to consent only in relation to count 2.
Should the trial judge have directed on mistake of fact in relation to count 1?
Section 24(1) of the Criminal Code (Qld) provides:
“(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”
The alternative defence case in relation to mistake of fact was predicated on the basis sexual intercourse had taken place. It was orthodox, though difficult, for the defence to be conducted on the basis of a primary case that reflected the appellant’s instructions and his record of interview that he did not have sexual intercourse (or any sexual contact) with the complainant and an alternative case that, if the jury were satisfied that sexual intercourse had taken place, there was evidence on the prosecution case for mistake of fact to be left to the jury. As Sofronoff P observed in R v Makary  2 Qd R 528 at  in respect of a case in which an accused gives evidence there was no sexual intercourse at all, “the accused’s answer to the charge may preclude any reliance upon s 24 because the denial that sexual intercourse had taken place may imply that the accused held no belief about consent, there being no reason ever to have formed any such belief”. Sofronoff P then noted, however, at :
“However, it is not possible to deny the possibility that cases may arise in which the accused’s answer that there was no sexual intercourse will not preclude an issue arising under s 24 for the jury’s consideration.”
The meaning of “consent” for the purpose of the offence of rape is set out in s 348 of the Code and relevantly means “consent freely and voluntarily given by a person with the cognitive capacity to give the consent”. Sofronoff P in Makary at - explained that consent requires two elements, the first of which is subjective in that it is the state of mind of the complainant and the second of which is objective in the sense the consent must be given which usually involves the making of a representation by some means about the complainant’s actual mental state, when that mental state consists of a willingness to engage in an act. As was observed in the joint judgment of Davies and McPherson JJA in R v I A Shaw  1 Qd R 641 at 646:
“A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it.”
Sofronoff P in Makary at  dealt with the nature of the evidence required for s 24 to arise for a jury’s consideration:
“It follows that before s 24 can arise for a jury’s consideration in connection with the issue of consent there must be some evidence that raises a factual issue about whether the accused believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way. Inevitably, that will require some evidence of acts (or, in particular circumstances, an omission to act) by a complainant that led the defendant to believe that the complainant had a particular state of mind consisting of a willingness to engage in the act and believed also that that state of mind had been communicated to the defendant, that is, that consent had been ‘given’.”
It is conceded on behalf of the appellant that the fact the complainant attempted to walk away and said “No” prior to sexual intercourse occurring in the incident that was the subject of count 1 could be viewed as a rejection of the appellant’s advances. On the basis, however, that after the appellant continued his advances and the complainant did not try to stop him, it is submitted the question of whether the appellant could have had an honest and reasonable belief about consent to sexual intercourse during the incident that was the subject of count 1 was one of fact, and that should have been left to the jury. It is also submitted that a compelling reason for the jury to be directed on mistake of fact as to consent in relation to count 1 was that it affected the quality of the defence in relation to mistake of fact as to consent on count 2. This is because the appellant submitted that his question of the complainant “Do you want to do it again?” immediately prior to the second incident had greater prospect of being indicative of his perception that the first incident had been consensual intercourse which was relevant to his belief about consent for the second incident, if the jury had been directed about mistake of fact as to consent during the first incident.
There was little evidence adduced in the trial relevant to the appellant’s belief as to the complainant’s consent to sexual intercourse, whether any such belief was honest and whether these were reasonable grounds for it. Because the appellant denied in his record of interview that sexual intercourse ever took place, the only evidence that could be relied on for mistake of fact was that of the complainant herself.
The kissing that took place between the complainant and the appellant around the fire and that the complainant did not struggle when he carried her around to the side of the house lost its relevance to this issue, as it preceded the complainant’s action in attempting to walk away and saying “No”. It is a question of whether what happened subsequently after she said “No” between when the appellant pulled her and she dropped to the ground and to penetration was evidence that raised a s 24 defence for exclusion by the prosecution. The complainant’s evidence was of complete passivity on her part during that period. Even if it were arguable that there was sufficient evidence that precluded the prosecution excluding beyond reasonable doubt that the appellant had an honest belief that the complainant was consenting to sexual intercourse, there was absolutely no evidence directed at whether there were reasonable grounds for such an honest but mistaken belief. The reasonable grounds had to exist at the time the honest belief was held, when penetration occurred. To the extent counsel for the appellant relied on the appellant’s comment “did you hear that?”, when the screen door opened, as indicating his belief that he and the complainant were co-conspirators, rather than perpetrator and victim, that evidence may have been relevant to whether or not an inference could be drawn that the appellant honestly held a belief that the complainant was consenting to sexual intercourse, but it said nothing whatsoever about whether there were reasonable grounds for such a belief to be held by the appellant. To the extent it is submitted on behalf the appellant that his perception embodied in the question at the time of the second incident “Do you want to do it again?” suggested the appellant believed the first incident of sexual intercourse with the complainant was consensual, it also could only be relevant to whether he honestly held such a belief and could not have any relevance to whether there were reasonable grounds for such a belief.
There was not sufficient evidence to give rise to the possible application of s 24 of the Code in respect of whether the complainant consented to the sexual intercourse that was the subject of count 1. It would not have been proper for the trial judge to direct on mistake of fact on count 1, which otherwise did not apply, merely because that might have bolstered the appellant’s case in respect of mistake of fact for count 2. There was therefore no error by the trial judge in not directing the jury on mistake of fact in relation to count 1.
Was the trial judge’s direction on mistake of fact in relation to count 2 adequate?
The fact that the complainant had observed the appellant’s fight with his stepfather and was scared of the appellant, as a result, was an important aspect of the prosecution case on the complainant’s subjective state of mind for each incident that she was not consenting to sexual intercourse with the appellant and to explain why the complainant reacted in the manner that she did to the appellant’s sexual advances.
During the record of interview the appellant was asked about the incident involving his stepfather when the police were called to the house and he stated he had been drinking and did not remember it, but that he had taken all his tablets and blacked out from it. He stated there was “a big argument … and all that” between him and his stepfather and the police were called. He agreed that the complainant was there.
It is submitted on behalf of the appellant that it was open for the jury to infer from the appellant’s lack of recollection about the fight with his stepfather that the appellant was unaware of the complainant’s fear of him and that was a relevant circumstance for the jury to take into account, when considering whether the prosecution excluded the defence of mistake of fact as to consent in relation to count 2. It is submitted the jury should have been specifically directed that the appellant may have had an honest and reasonable, but mistaken, belief that the complainant was not afraid of him and, in the circumstances, that was a critical piece of evidence relevant to the question of whether the appellant had a mistaken belief as to the complainant’s consent to sexual intercourse. It is therefore submitted the judge erred by not directing the jury that the appellant’s lack of knowledge about the fight with his stepfather was relevant to the appellant’s consideration of the complainant’s responses to him during the second incident.
In response, Ms Balic of counsel on behalf of the respondent submitted that it was equally open for the jury to infer from the appellant’s knowledge of the presence of the complainant at the time he fought with his stepfather, that he was aware she was scared of him. It is submitted, in any case, the jury did not need to be directed upon an issue in respect of which it is asserted the appellant had no knowledge (which was that the complainant was scared of him).
There are a number of problems with the appellant’s submissions on this ground. First, it is not apparent from the appellant’s record of interview (or any other evidence) that his lack of recollection about the fight with his stepfather persisted to 16 August 2016. Second, there was no evidence whatsoever that would support any inference to be drawn on whether the appellant had any view about the complainant’s attitude towards him, as a result of her witnessing the fight he had with his stepfather, and, if so, what that view was. It would have been asking the jury to act improperly on speculation, if they were directed (as urged now by counsel for the appellant) that they should take into account, when considering whether the prosecution had excluded the defence of mistake of fact as to consent in relation to count 2, that the prosecution could not exclude that the appellant was unaware of the complainant’s fear of him. Third, there is no room for the application of s 24 of the Code to the appellant’s belief about the complainant’s attitude towards him, rather than the appellant’s belief that the complainant was consenting to sexual intercourse. The belief in the existence of the state of things that is relevant for the purpose of s 24 is the state of things that causes the person to do (or omit to do) the act that is the subject of the charge (which in this case was whether the complainant was consenting to sexual intercourse): R v Cutts  QCA 306 at .
Did the trial judge unduly restrict defence counsel’s address to the jury?
The trial judge did not preclude the appellant’s counsel’s addressing the jury in relation to the defence of mistake of fact as to consent in respect of count 2 on the basis the prosecution could not discharge the onus it bore to exclude the defence. That was technically the correct analysis of any submission to be made by the appellant’s counsel at trial to the jury in view of the onus on the prosecution to exclude the defence under s 24 of the Code: Cutts at ,  and ; Makary at . The manner in which the appellant’s trial counsel could put the alternative case was necessarily constrained by the fact that it was an alternative (and inconsistent) case to the appellant’s primary defence that no sexual intercourse took place. It depended entirely on the inferences that could be drawn by the jury from the complainant’s evidence that was relevant to the appellant’s belief about whether she was consenting to sexual intercourse during the second incident. It would have been a difficult, though not an impossible, task for the appellant’s trial counsel to address on the alternative case. The trial judge’s suggestion as to the adverse comment he may make if the address on this topic were to proceed in a certain way did not preclude the appellant’s trial counsel from addressing the jury on the prosecution’s failure to exclude beyond reasonable doubt the defence of mistake of fact as to consent in respect of count 2.
It appears the appellant’s trial counsel made a forensic decision in the light of the trial judge’s intimation as to what comments the trial judge may make, depending on how the appellant’s trial counsel addressed on mistake of fact. That decision was not to address the jury at all on the defence of mistake of fact as to consent in respect of count 2. It was unnecessary for the trial judge to suggest that he would make an adverse comment on any positive submission made by the appellant’s trial counsel to the effect they could infer the appellant did have was an honest and reasonable mistaken belief about the complainant’s consent, but that suggestion was overtaken by the forensic decision made by the appellant’s counsel not to address at all on that defence. There was a good forensic reason for the appellant’s trial counsel not to do so, when addressing on the alternative case would detract from the appellant’s primary defence that no sexual intercourse took place which was the dominant theme of the appellant’s trial counsel’s address to the jury. It cannot be concluded, in the circumstances, that the trial judge unduly restricted the appellant’s trial counsel’s address to the jury.
Was there a miscarriage of justice due to defence counsel’s failure to address on mistake of fact?
With the only evidence that was available on the issue of whether at the time penetration occurred during the sexual intercourse that was the subject of count 2, the appellant held an honest and reasonable, but mistaken, belief that the complainant was consenting to the sexual intercourse was from the complainant herself, it was a weak defence of mistake of fact. There is no challenge to the trial judge’s directions to the jury on the requirement for the prosecution to exclude the defence of mistake of fact for count 2. The trial judge alerted the jury to his duty to direct them on all possible defences which arose and that needed to be considered by them in the jury verdict, even though the defence of mistake of fact was not raised on behalf of the appellant who denied in his record of interview of having sexual intercourse with the complainant. The jury had been given an information document setting out the elements of each of the counts. In respect of count 2 there was an accurate statement of the prosecution’s obligation to prove beyond reasonable doubt that the defence of mistake of fact did not arise with respect to count 2 and what matters that required the jury to consider. The trial judge dealt at length in this part of the summing-up with the relevant circumstances which the jury should consider in considering whether the prosecution had proved beyond reasonable doubt that the appellant did not hold an honest belief that the complainant was consenting to sexual intercourse that was reasonable in the circumstances.
Particularly as there was a good forensic reason for the appellant’s trial counsel not to address on the defence of mistake of fact, there was no miscarriage of justice due to counsel’s failure to do so, when the trial judge gave comprehensive directions to the jury on the relevant law and drew their attention to all relevant evidence.
Was there an error of law in the direction given on lies?
In analysing the submissions on the adequacy of the trial judge’s direction on lies, it is relevant that for each charge of rape an alternative charge of unlawful carnal knowledge was open on the indictment, as the complainant was under 16 years old in August 2016. The jury was instructed that, if they acquitted on the charge of rape, they had to consider whether the appellant was guilty or not guilty of unlawful carnal knowledge.
The prosecutor at trial in the course of his closing address to the jury referred to the appellant’s record of interview and stated:
“He’s put his say out and you can assess his say. Think about what he said. He denied sexual contact altogether. He not only denied it. He said they were never alone together. He said the incident – and he’s quite clear, the incident in the room, bedroom, on the second day, couldn’t happen due to the proximity of other rooms. He even went to the point of distancing himself by saying he denied any contact. You’ve heard evidence from a couple of different sources about a play fight, but he denied any conflict altogether. Clearly, I say to you that when the defendant denied any sexual contact with the complainant, he was lying, and he’s lying to get out of the matter. He knew he was caught.
Now I expect you to be confident of that because of the level of detail the complainant’s account, consistency of the account, and the manner you saw her give evidence and tested under cross-examination. She showed emotion at times to evidence before her. It’s appropriate. And she made concessions as appropriate. But have a look at the defendant in his interview, and remember he’s a 20 year old man. He’s being investigated for some very serious charges. Look how he answered the questions, flat, monotone, almost emotionless. He is been accused of very serious allegations.”
The appellant’s trial counsel addressed the jury at great length on what he argued were the discrepancies in the complainant’s evidence and then urged the jury to compare the complainant’s evidence with the appellant’s interview:
“And then lastly, you have her version to be compared with what [the appellant] says in his interview with police where he denies what happened. So we actually have an account with him made at the time.
And some point was made of his tone and how he presented, but you might also recall he told you in the interview, that he’d had some anxiety and depression in the past. So if his mood was a bit flat you might properly regard that as at least some way of explaining it rather than considering what he said as not being a forthright enough denial.”
The appellant’s trial counsel also told the jury, correctly:
“The fact that [the appellant] took part in a police interview does not mean that he assumed the onus of proving anything to you.
So what I say to you is if you don’t accept what he said you then put his version to the side and then you come to the rest of the Crown evidence and it’s the chance that you might come to that position where you’re not sure about the interview. And what do you do with the rest of the evidence and I will deal with that.”
In the summing-up, the trial judge summarised the complainant’s evidence in relation to each count and he also summarised the appellant’s record of interview. The trial judge gave an appropriate direction in relation to the jury’s assessment of the record of interview, including:
“[The appellant] made statements in the record of interviews to give his explanation of the incidents. If you accept those statements as having been made by him and is true, it is up to you to decide what weight you give them and what you think they prove.
He also gave answers which … you might view as indicating his innocence. You’re entitled to have regard to those answers if you accept them and to give them whatever weight you think appropriate, bearing in mind that they’ve not been tested by cross-examination.”
The specific direction that was given by the trial judge on lies was:
“[The prosecutor] submitted that [the appellant] lied in his record of interview with the police and that was a submission made … to you yesterday afternoon. Now, you will make up your own mind about whether he lied. However, you should bear in mind this warning: do not follow a process of reasoning to the effect that just because you find that [the appellant] lied in his record of interview about something that that is evidence of guilt.”
In summarising the prosecutor’s address to the jury, the trial judge dealt with the prosecutor’s submissions on the record of interview (in addition to the direction on lies set out above) as follows:
“Finally, you were invited to consider the record of interview and look at the evidence of the interview critically. [The prosecutor] emphasised the demeanour of [the appellant]. You will recall he described the demeanour as flat, that the responses were monotone, and they were monotone responses to what you would regard as serious allegations. It was submitted to you that [the appellant] lied in his interview. At the very least, your attention was drawn to one inconsistency on the evidence, and that is, on the one hand, [the appellant] said to police he never touched [the complainant]. On the other hand, you are reminded of the proposition that was put by [defence counsel] to a number of witnesses about there being horseplay or play-fights between [the appellant] and [the complainant].”
The trial judge then summarised the submissions made by the appellant’s trial counsel on the discrepancies in the complainant’s evidence that were the focus of those submissions, repeated the defence submission that the jury would accept the appellant’s explanation in the record of interview was accurate, truthful and reliable, and appropriately endorsed the submission by the appellant’s trial counsel that, if the jury did not accept the appellant’s version, that did not mean he was guilty of the offences charged.
No redirection was sought by the appellant’s trial counsel in respect of the specific direction given on lies. It is now argued on behalf of the appellant that the substance of the prosecutor’s closing address was a submission the appellant had lied in consciousness of his guilt and that it was therefore necessary for the trial judge to provide a direction in accordance with Edwards v The Queen (1993) 178 CLR 193. It is submitted there was evidence before the jury that the motivation for the appellant’s lie may have been unrelated to the guilt over the charged offences of rape, in that he may have lied, because he felt ashamed of having sexual intercourse with his step cousin, or because he knew the complainant was 15 years which implicated him in the less serious alternative offence, or for some other reason.
The appellant submits that there were similarities between his trial and the trial in R v Sheppard  QCA 342 where it was held that an Edwards direction should have been given.
Generally, an Edwards direction should be given, if what is in issue is a lie that is concerned with some circumstance or event connected with the offence that is a material issue, if the prosecution contends that the lie is evidence of guilt, in the sense that it was told because the defendant knew the truth would implicate him in the commission of the offence, so that it is tantamount to an admission of guilt of the offence: Edwards at 210-211.
The alleged lie that was the focus of the prosecutor’s address to the jury was the denial by the appellant of any sexual contact, including sexual intercourse, with the complainant and the subsidiary lies that were related to the same denial (such as the appellant going to bed at 10 pm). That lie (and associated subsidiary lies) were the appellant’s contrary version to the complainant’s evidence of the critical conduct that was the subject of each charge of rape. The trial was conducted on the basis that the appellant could not be convicted of either count 1 or count 2 unless the jury was satisfied that in respect of the particular count the complainant’s evidence was truthful and reliable. Apart from articulating the appellant’s denial, the predominant use that was suggested by the prosecutor and the appellant’s trial counsel in their addresses and the trial judge in the summing-up to the jury be made of the appellant’s record of interview was to assess the complainant’s evidence, so that the jury could determine whether the prosecution had discharged the burden to prove guilt of each count beyond reasonable doubt.
The trial judge had informed the prosecutor prior to addresses that it was not an appropriate case for an Edwards direction, on the basis it was a case where there were two competing versions, and if a submission were made that the appellant were lying, that was relevant to the appellant’s credit, rather than consciousness of guilt. It was unfortunate therefore that in the course of making the submission to the jury about lies in the record of interview, the prosecutor suggested the appellant was “lying to get out of the matter” which could be taken as a submission that the appellant lied because of consciousness of guilt as to the rape counts. In the context of the balance of the prosecutor’s address, however, it was clear that the prosecutor was discrediting the appellant’s version in order to persuade the jury to accept the complainant’s version, rather than asserting that the lies of the appellant could be treated as an admission of guilt and added to the other evidence in the prosecution case.
The appellant’s trial counsel’s address that was reinforced by the trial judge’s summing-up made it clear to the jury that, if they did think the appellant lied in the record of interview, that went to his credit only, and they should set the record of interview to one side, as they evaluated the other evidence in the trial. The fact that the trial judge in the summing-up referred specifically to the prosecutor’s submission that the appellant lied in his record of interview and correctly warned them to avoid the impermissible path of reasoning that, if they found the appellant lied, the appellant’s lies were evidence of guilt was sufficient to overcome any confusion caused by the prosecutor’s submission that the appellant lied “to get out of the matter”. Compare R v Mitchell (2007) 174 A Crim R 52 where the prosecutor had not overtly invited the jury to conclude that Mitchell had told lies as an admission of guilt in connection with his arrival back at his home on the evening when the deceased was bashed to death there, but some of the statements from the prosecutor’s address carried that implication, and Williams JA suggested by way of obiter dictum at :
“If the jury had been told in the course of the summing up that the lies were relevant only to the appellant's credibility, the words used by the prosecutor could not have been taken by a reasonable juror to be suggesting that there was implicit in the lies told an admission of guilt. As already noted the reasoning in Edwards itself does not require the direction to be given in all cases where the accused has told lies about material facts.”
Although at a superficial level there may appear similarities between the appellant’s trial and the trial in Sheppard, close analysis of the course of the trial resulted in the conclusion at  that the effect of the judge’s direction on lies, in the light of the prosecutor’s address in that case, left open the possibility for the jury to use the lies as evidence of consciousness of guilt, without the protection of an Edwards direction.
Even though it is common for the usual direction as to lies told by a defendant (going only to credit) to be expanded with examples for the jury of circumstances in which a defendant may lie that is not itself evidence of guilt, the extent to which that is done and the examples that are given depend on the circumstances of the case.
The difficulty of doing so in this matter was highlighted by the submissions made on behalf of the appellant as to some of the reasons for any lies in the record of interview. Those reasons, in effect, conceded the proof of the alternative offence of unlawful carnal knowledge which was inconsistent with the primary defence at trial of the denial of sexual intercourse.
The Edwards direction properly given requires each lie that is alleged by the prosecution to be identified together with the circumstances and events that indicate it constitutes an admission of guilt: Edwards at 210-211. That would have been detrimental to the appellant by focusing not only on his denial of sexual intercourse, but also on each of the associated subsidiary lies.
The trial judge’s specific direction on lies was brief, but it was supplemented by the related directions that the trial judge gave on how the jury should use the appellant’s record of interview. In the circumstances of how this trial was conducted, the trial judge’s direction on lies, though minimal, was sufficient. Unlike in Sheppard, the trial judge’s directions did not leave open the possibility for the jury to use any lies in the appellant’s interview as evidence in the prosecution case of the appellant’s consciousness of guilt. There was no error of law in not giving an Edwards direction.
The appellant has been unsuccessful on each of his grounds of appeal. The appeal must be dismissed.
HENRY J: The grounds of this appeal and its factual background have been outlined in the reasons of Mullins AJA.
I agree with her Honour’s reasons and conclusions in respect of grounds 2 and 4 of the appeal. I have however reached different conclusions than her Honour in respect of grounds 1 and 3. In my respectful view the appellant has made good those grounds with the consequence that the appeal should be allowed, the convictions quashed and a re-trial ordered.
It will assist discussion of grounds 1 and 3 if I first add some brief observations about the dynamics of this case by way of further background.
This was always a strong case that the 20 year old appellant twice had sexual intercourse with his step-cousin, the 15 year old complainant, towards the end of her family’s two week stay with his family at their house in Queensland.
The complainant testified the first instance of intercourse occurred after she and the appellant had been left alone late at night, outside the house, and the second occurred two nights later, after the complainant entered the appellant’s bedroom between 2 and 3 am. The complainant’s evidence did not stand in isolation. When the complainant’s family returned to their home state, something was evidently concerning her. On inquiry from her parents she progressively disclosed the occurrence of the two events. When the complainant was medically examined a recent tear to her hymen was detected – she had been a virgin before these events. True it is, when interviewed by police about the allegations of rape, the appellant denied sexual intercourse occurred. However, it was not a credible denial in light of the above features. It was made even less credible by the appellant’s denial of being alone with the complainant. That claim was contradicted by the evidence of the complainant’s brother that he had left his sister and the appellant alone outside for a lengthy period on the night of the first alleged instance of intercourse. Prior to that date the brother had noticed hickeys on his sister’s neck. Further, the complainant’s mother had discovered the appellant had been texting the complainant, although the complainant deleted the texts before her mother had the chance to read them. Against that background it was unlikely the jury would believe the appellant’s denial of sexual intercourse.
On the other hand, this was not as strong a case of rape as it was of unlawful carnal knowledge of a child under 16. That is not to suggest it was not open to a properly instructed jury to accept the complainant’s evidence that she had not consented. However, there were some aspects of the evidence which suggested the issue of consent was less clear-cut at the time of the events than it became at some stages of the re-telling. The complainant claimed she was fearful of the appellant at the time of the alleged offences because of his violence to his step-father near the beginning of the stay. This was proffered in explanation of her acquiescence, many days later, to the two instances of intercourse. Yet by the time of the alleged offences the complainant and appellant had been seen by the complainant’s brother to be interacting, apparently getting on well with each other. Moreover, on the occasion of count 1 the complainant evidently felt safe enough in the defendant’s company to remain alone outside with him very late at night. Further, on the occasion of count 2 she evidently felt safe enough to enter his bedroom alone and sit on his bed, again very late at night. In addition, it was open to the jury to consider the complainant had previously overstated the appellant’s alleged physicality by claiming to her father that the appellant had forced her to have sex on the first occasion and made her bend over to have sex on the second occasion – claims which did not match her testimony regarding the appellant’s physical actions. In light of these features of the case, it was not inevitable that the jury would accept all aspects of the complainant’s testimony or all inferences the prosecution urged the jury to draw from that testimony.
There was a risk that those subtleties, which also bore upon the defence of mistake of fact, would receive inadequate attention once the jury concluded the appellant had lied in denying that sexual intercourse occurred. It was important the jury did not misuse that conclusion as supporting a conclusion of guilt of rape, as if the case involved a binary choice between rape and no intercourse at all. As has been discussed by Mullins AJA in respect of count 4, the learned trial judge warned the jury against using the appellant’s lies as evidence of guilt. Some judges may have added to the force of that warning by explaining why the lies could not be used in that way, identifying the ways in which embarrassment or fear may have motivated the lies. Those ways were in any event obvious.
Potential sources of embarrassment were that the complainant was a step-relation of the appellant’s, that in having sexual intercourse with her the appellant had been unfaithful to his girlfriend and that the appellant’s mother was present during his interview with police. The influence of fear was even more obvious. The appellant may have lied because he was fearful of being correctly convicted and punished for having carnal knowledge of a girl under 16 or wrongly convicted and punished for rape in circumstances where he had believed intercourse was consensual.
The most viable view of the facts, other than that the appellant committed rape, was not that sexual intercourse did not happen but that it happened in circumstances where the appellant believed it was consensual. Even if the jury concluded the complainant did not consent, there lingered the real possibility that a young man, lacking the fortitude to admit he twice had sex with his underage step-cousin, had done so mistakenly believing she was consenting. As the ensuing analysis of counts 1 and 3 demonstrates, the appellant was wrongly deprived of the proper ventilation and consideration of that possibility at his trial.
Ground 1 – Failure to leave mistake of fact on count 1
The trial judge properly left the defence of mistake of fact in respect of count 2, an offence alleged to have occurred only two days after count 1. Yet his Honour ruled such a defence would not go to the jury in respect of count 1, the first count in time, because it did not fairly arise for the consideration of the jury.
His Honour erred in so ruling, seemingly allowing his own view of the inferences which should be drawn from the facts to obscure competing inferences favourable to the defendant. Those favourable inferences raised the possibility that the appellant had honestly and reasonably believed the complainant was consenting at the time of count 1. The appellant was erroneously deprived of that possibility being considered by the jury.
To understand the error it is first necessary to understand the role of the trial judge in determining whether an exculpatory defence should be left to the jury.
Mistake of fact in s 24 of the Code is one of a variety of provisions in the Code which have the effect of excusing a person from criminal responsibility. The excusal in s 24 operates indirectly in that its operation will permit the defendant’s criminal responsibility to be assessed as if the mistakenly believed state of things was the real state of things. Other exculpatory defences in the Code include, for example, s 271 self-defence, s 23 accident, s 25 extraordinary emergency and s 31 compulsion.
While often referred to as defences, such sections place no onus upon a defendant to prove them. Rather, in those cases where such defences are left by the trial judge for consideration by the jury, the prosecution carries the onus of excluding them, consistent with it being the prosecution’s obligation to prove guilt beyond reasonable doubt. Thus, where mistake of fact arises as a potential defence for consideration by the jury, it is for the prosecution to satisfy the jury beyond reasonable doubt “of the non-existence of operative mistake”.
That such an exculpatory defence is left to a jury’s consideration by a trial judge does not undermine the jury’s role as the judge of the facts in a criminal trial. Leaving an exculpatory defence for the jury’s consideration is no more an endorsement of the defence’s merit than a trial judge’s leaving of the prosecution case to the jury is an endorsement of the prosecution’s merit.
There will of course be occasions where the judge’s personal view is that an exculpatory defence is weak, just as there will be occasions when the judge’s personal view is that a prosecution case is weak. However, the High Court has repeatedly emphasised such judicial opinions are irrelevant because it is the jury’s function to assess the strength of disputed evidence and the disputed inferences of fact relevant to proof of elements of offences or exclusion of defences. Hence, as explained by the High Court in Doney v The Queen, if there is evidence capable of supporting a verdict of guilty the trial judge must leave the prosecution case to the jury even if of the view that such evidence is “tenuous or inherently weak or vague” or that a conviction founded on such evidence would be unsafe or unsatisfactory. The same caution applies in allowing weak or tenuous defences to go to the jury. For instance, in R v Muratovic, in observations cited with approval by Wilson, Dawson and Toohey JJ in Zecevic v DPP, Gibbs J reasoned, where there is evidence upon which a jury could find or entertain a doubt about whether a defendant acted in self-defence, then, even though “the plea of self-defence may seem to a judge to be weak and tenuous”, it is for a jury to determine the issue.
The aforementioned observations of Gibbs J also highlight the importance of the trial judge not limiting the question of whether an exculpatory defence should be left to the jury to the question of whether there is evidence upon which a jury may conclude an exculpatory defence was operative. Rather, the question should extend to whether there is evidence which might cause a jury to harbour a reasonable doubt as to whether the defence was operative. The point was explained by the plurality in Masciantonio v The Queen, where the High Court was concerned with provocation as an exculpatory defence. Citing Stingel v The Queen, their Honours observed:
“The answer to the question whether the trial judge should have left provocation to the jury … in this case depends upon whether there was evidence which was capable of constituting provocation. However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely. It is “whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.” (emphasis added)
The trial judge’s task of determining whether an exculpatory defence ought be left to a jury will invariably be simpler where a defendant gives direct evidence in support of the defence. However, it must not be overlooked that evidence can be indirect, that is, circumstantial. Taking the example of a mistake of fact defence under s 24, such a defence requires consideration of the defendant’s belief as to consent and a jury is entitled to draw inferences about a person’s belief. There may be cases in which such a defence arises even though the defendant denies intercourse. That is because even though there is no direct evidence of the defendant mistakenly believing the complainant consented to intercourse, the prosecution’s own case may include evidence providing circumstantial evidence of the existence of such a belief. A defendant’s denial of intercourse and the consequent absence of direct evidence of a mistaken belief are of course matters the jury may weigh up in assessing whether the defence of mistake of fact has been excluded. But that is the jury’s concern. It is no concern of the judge. It is well established a trial judge must direct a jury on any defence fairly raised on the evidence, even where it has not been raised on the defence case.
Where an exculpatory defence is circumstantially based on the prosecution’s own evidence the defence may be based on an accumulation of innocent inferences, each having competing inferences unfavourable to the defence. If so, in assessing whether the defence should be left to the jury, the trial judge must not disregard available innocent inferences merely because the judge thinks the competing inferences, less favourable to the defence, are stronger. That is because, as was emphasised by the High Court in Barca v The Queen, it is for the jury to determine whether they are satisfied a hypothesis consistent with innocence has been excluded. In Barca the trial judge directed the jury there was no evidence Barca’s father committed the murder with which Barca was charged, thus wrongly removing from their consideration the hypothesis that Barca’s father had committed the murder. The High Court acknowledged the evidence was “far too slight” to support a positive finding Barca’s father had committed the murder but held there existed circumstantial evidence supporting that hypothesis, so that the defence should not have been precluded from arguing that hypothesis had not been excluded.
Barca was not itself a case in which the judge had failed to put an exculpatory defence to the jury but the principle for which it stands was relied upon by the majority in Stevens v The Queen, which did involve a failure to put an exculpatory defence. Stevens allegedly shot his business partner, Mr Brockhurst. Stevens’ account to police and at trial was to the effect the deceased was holding the gun as if preparatory to committing suicide and the gun discharged as Stevens grabbed for it. The trial judge declined to leave a s 23 defence of accident to the jury and Stevens was convicted of murder. The majority in the High Court concluded there existed evidence which required a s 23 defence of accident to be left to the jury. In summary, that evidence was the men were friends, the gun could fire without the trigger being pulled and Stevens had told the ambulance he was “going to call it an accident for the moment”. McHugh J observed:
“A jury is entitled to refuse to accept the cases of the parties and “work out for themselves a view of the case which did not exactly represent what either party said”. As Barca makes clear, the appellant was not required to establish by inference that Mr Brockhurst died by accident. Nor was he required “to prove particular facts that would tend to support such an inference”. …
With great respect to the majority judges in the Court of Appeal, much of their reasoning was based on the express or implied premise that the evidence had to establish a possible inference of accident before that issue could be left to the jury. Barca denies that proposition. Juries cannot take into account fantastic or far-fetched possibilities. But they “themselves set the standard of what is reasonable in the circumstances”.”
Those observations highlight three points of importance in the present case. The first is that, while the potential inference of mistake of fact arose from the complainant’s evidence, it was a matter for the jury what aspects of her evidence were accepted and what inferences they were prepared to draw from that evidence. The fact the potential defence was based upon the complainant’s evidence did not mean the assessment of whether it ought be left to the jury had to be premised on the jury interpreting the complainant’s evidence, and the inferences which might be drawn from it, on the bases most favourable to the prosecution. To the contrary, as explained in the earlier quoted passage from Masciantonio, it is on the version of the complainant’s evidence most favourable to the defendant that the assessment was to be made.
The second point of importance is that there is no onus upon a defendant to persuade the trial judge of the positive inference that an exculpatory defence was operative. Tests articulating the threshold to be met before an exculpatory defence regarding a defendant’s belief is left to the jury must be understood in that light. For example, in respect of the exculpatory defence of compulsion in s 31(1)(d) of the Code, the High Court in Taiapa v The Queen considered, for the defence to be left to a jury, it was necessary for there to be some basis in the evidence “raising as a reasonable possibility” the existence of reasonable grounds for the reasonable belief required by s 31(1)(d)(ii). Similarly, in respect of the exculpatory defence of mistake of fact, Sofronoff P observed in R v Makary that there must be some evidence to “fairly and realistically raise” s 24 for consideration. The risk with such tests, as intimated by McMurdo JA in Makary, is that they may be misapplied as requiring “a need for evidence on which there could be a finding that the mistaken belief was held”, when it would be enough merely for there to be evidence on which the jury could be left in a reasonable doubt either way as to whether the defence was operative. Such tests should not be understood as requiring the trial judge to be persuaded of the force of the innocent inference of the requisite belief beyond it being, on the evidence most favourable to the defendant, an inference that “a jury acting reasonably might fail to be satisfied” beyond a reasonable doubt has been excluded.
The third point of importance is that the assessment of what is or may be “reasonable” in the circumstances of any case is for the jury, not the judge. This exposes a particular risk of error where a trial judge is tasked with deciding whether a defence of mistake of fact ought be left to a jury in that the defence itself refers to an honestly held mistaken belief which is “reasonable”. The risk is that the judge may conflate the task of assessing whether the defence ought be left – the judge’s task – with the task of assessing the reasonableness of the belief – the jury’s task.
Turning to the present case, it was hardly surprising that s 24 was left in respect of count 2 in circumstances where, on the complainant’s evidence, the appellant embarked upon its commission asking, “Do you want to do it again”. Unfortunately, that evidence was not referred to in his Honour’s reasons for withholding the defence of mistake of fact from the jury in respect of count 1.
The question bespoke an obvious connection with count 1, in effect asking whether the complainant wanted to repeat the sexual intercourse which had occurred two days earlier. It was open to the jury to infer from the question that the appellant had believed the complainant did want to engage in sexual intercourse when it had occurred earlier.
There may have been other inferences arising from the appellant posing the question, “Do you want to do it again”. However, the evidence of the question was capable of raising the inference the appellant had honestly believed at the time of the sexual intercourse alleged in count 1 that the complainant was consenting to it. It was a sufficiently realistic inference that the jury could potentially entertain a reasonable doubt as to whether the prosecution had excluded it. This exposes the determinative issue in ground 1: whether it was a realistic possibility that such a mistaken belief was held on reasonable grounds.
A trial judge should be reluctant in other than the clearest of cases to withhold a s 24 defence from the jury on the basis that the belief could not have been reasonably held. That is because, as McHugh J highlighted in Stevens, the jury sets the standard of what is reasonable in the circumstances. It should be for the jury, whose view of the facts may differ from the judge’s, to decide whether the prosecution has excluded the possibility a mistaken belief was reasonably held.
The point is well illustrated by reference to two cases which involved such exceptional circumstances that on no view of the facts was it possible that the requisite belief was reasonably held. In R v Millar the complainant awoke with the appellant’s finger inside her vagina. She conceded she continued to lie there for some minutes before rolling onto her side and said nothing to the appellant. The learned trial judge declined to allow the exculpatory defence of mistake of fact to go to the jury because the act charged involved the insertion of the appellant’s finger into the complainant’s vagina, which occurred at a time when she was asleep and thus incapable of consenting. The Court of Appeal agreed. McPherson JA observed that not even “the most imaginative minds” could interpret the complainant’s earlier acts, of consuming alcohol and playing cards on the sofa bed where she had fallen asleep after becoming drunk and sick, as implying that she consented to Millar inserting his finger in her vagina once she was asleep.
R v Makary provides a similar example in that the complainant had lost consciousness prior to the appellant having intercourse with her. The Court of Appeal there concluded, unsurprisingly, that the complainant’s earlier actions in not chastising the appellant about his romantic overtures and not pushing the appellant away with any strength when he kissed her were rendered irrelevant, “if they were ever relevant”, by reason of the complainant having lost consciousness before the appellant had sexual intercourse of her.
In each of those cases, even if the relevant appellant honestly held the requisite mistaken belief, the inference that it was a reasonable belief was not a sufficiently realistic possible inference that a jury could entertain a reasonable doubt about it. The same cannot be said of the circumstances of count 1 here. The complainant was not intoxicated or asleep. To the contrary, she was interacting with the appellant in ways and in circumstances susceptible to competing inferences. One such inference is that by the time of the act of sexual intercourse beside the house the appellant had reasonable grounds for believing the complainant was consenting.
There were of course aspects of the complainant’s account which did not support that inference. For instance, at the stage when they were near the fire the complainant’s account did not suggest she kissed the appellant back when he kissed her neck, at the stage after they arrived at the southern side of the house she at one point said “No” and at the stage when sexual intercourse actually occurred there is no evidence she participated in a responsive way. However, there were other aspects of the facts at each of those stages which cumulatively supported the potential inference of reasonable grounds for a mistaken belief as to consent.
Turning to those stages in more detail, when the complainant and the appellant were seated by the fire, the complainant’s description of how they came to be physically close was as follows:
“We were sitting opposite each other on outdoor chairs around a little fire that we had made inside a metal bin. [The appellant] and I were sitting close enough that he could reach over and touch me if he stood up a little. That is what he started to do – he used his right hand to grab at the left upper sleeve of my jacket and tried to pull me over onto his lap. Eventually I just sat on his lap because he would have kept dragging me back to him if I had of gotten off again. I was looking at the fire and then [the appellant] started kissing the left side of my neck.” (emphasis added)
It is unnecessary to here resolve the dubious admissibility of the complainant’s unexplained opinion that the appellant “would have kept dragging me back to him” if she left her position sitting on his lap. That assertion – exclusive to her inner mental processes – would at best provide some explanation for why she remained on his lap but it provides no explanation of how she moved to his lap in the first place. She did not assert that he had “dragged” her onto his lap. She did assert he had earlier “tried to pull” her over onto his lap. However, she did not suggest that her actual movement onto his lap was, in a mechanical sense, caused by the physical force by the appellant. Her movement onto his lap apparently occurred because, whatever her inner reasoning for it may have been, she chose to move and sit on his lap.
One inference, favourable to the prosecution, was that the earlier pulling was forceful, causing her to decide to move onto his lap to avoid the prospect of being dragged. Another inference, favourable to the defence, was that the earlier pulling was gentle, conveying the appellant’s desire that she should move to him, without physically forcing or intimidating her to do so. It was at least open to the jury to consider the latter inference, from which it follows it was at least open to the jury to consider the inference that, from the appellant’s perspective, the complainant eventually responded consensually and physically favourably to the appellant by sitting on his lap. None of this is to suggest that is what in fact happened or that it was the most compelling of the competing inferences – they were matters for the jury.
Turning next to the stage when the appellant carried the complainant to the side of the house, the complainant’s statement to police said:
“He put me down so I was standing on some grass and I tried walking off back to where we had been but he grabbed the bottom of my shorts and pulled me back into him.
I said, “No”.
He said, “Lay down”.
I didn’t do anything, I just stood there. He held onto my right forearm and sort of pulled me, and I just dropped to the ground on the grass. I was sitting down with my knees pulled up to my chest, and he started taking off my clothes.” (emphasis added)
The learned trial judge’s reasons for declining to allow s 24 to go to the jury on count 1 focussed heavily upon this evidence and his Honour’s view of it. His Honour said:
“She says she was then put down …, and importantly tried to walk off back to where she had been, but was grabbed on the bottom of the shorts by the defendant who pulled her back into him.
The following exchange then occurred, on her evidence. She said, “No.” He directed her then, on her evidence, to lay down. That is a clear, in my view, expression of an absence of consent. It would then be necessary to point from that point onwards to evidence that would establish in the reasonable mind of the defendant, bearing in mind that he denies that this ever occurred, that there has been some change in circumstances, that is, from an initial walking away saying no, to consent. And the evidence that follows in [the complainant’s] statement falls well short of that mark.
At its highest, it’s – the evidence establishes inaction or an absence of an overt act or absence of resistance on the part of [the complainant] after the expression of no and an attempt to walk away. That doesn’t fairly raise, in my view, the defence of mistake of fact, and I will not put it to the jury accordingly.”
His Honour evidently attached importance to the facts that, when the complainant turned to go, the appellant pulled her back into him, she said “no” and he “directed” her to lay down. His Honour reasoned this was conclusive of absence of consent unless there was some subsequent change in circumstance, and he found there was no such change. That the complainant said “no” after the appellant pulled her back towards him was unquestionably a material fact. However, it did not stand in isolation. Evidently alive to this the learned trial judge noted the complainant was then “directed” to lay down.
However, there was no evidence the complainant was “directed” to lay down. The complainant only alleged the appellant “said” the words “Lay down”. There was no evidence that the tone of voice used when the appellant said the words “Lay down” had any particular quality to suggest it was a command or direction as distinct from a request, words of encouragement or an optimistic plea. It was as open to the jury to conclude that the appellant’s words “Lay down” were uttered in the tone of a direction as it was that they were uttered in a tone of hopeful encouragement.
This interpretation of the evidence on a basis favourable to the prosecution without allowing for competing inferences favourable to the defendant infected his Honour’s ensuing reasoning. Proceeding on the basis the appellant “directed” the complainant to lay down after she said “no”, his Honour did not contemplate the inference that her movement to the ground was done under her own locomotion, indicative of a change of heart. He presumably held the view it was an act of unconsenting compliance with the so-called “direction” and the appellant’s pulling.
It will be recalled the complainant’s statement said the appellant “sort of” pulled her and she “just dropped to the ground”. The question of how the complainant came to be on the ground attracted the following exchange in cross-examination:
“And so you – you were put down by [the appellant] because he carried you?---Yep.
Then did he get on the ground, did he?---I can’t remember.
Did – or how did you come to be on the ground?---He – because I was going to go back, he grabbed the bottom of my shorts and then pulled me in and then he’s probably pulled me down.
He – he pulled you down. Did – did you kind of just give into him pulling at your shorts and then just dropped to the ground?---Mm.
Sorry?---Yes.” (emphasis added)
An inference arising on the complainant’s own evidence was that, from the appellant’s perspective, despite the complainant’s initial reluctance to remain in this secluded spot, she decided to remain, dropping herself to the ground. This contradicts the inference that she was completely passive after saying “no”. As with the earlier movement at the fire, the inference was open to the jury that, from the appellant’s perspective, the complainant eventually responded consensually and physically favourably to him by moving herself to the ground to join him.
Again, that is not to suggest that was the only or the most compelling inference. However, it was a realistic potential inference, supported by the complainant’s evidence, if taking a view of that evidence most favourable to the appellant. It was overlooked by the learned trial judge when his Honour reasoned there was no change in circumstances.
Turning to the final stage, the complainant’s account of the removal of her clothing and sexual intercourse which followed did not lay claim to any physical or verbal resistance having occurred. She did assert she did not shout or scream for help because she was “just frozen”. Whether this was a figure of speech relating to her mental state or whether it meant she was physically rigid throughout was not explored. She explained, “I didn’t stop him from doing it – I was afraid of [the appellant] because [of] the fight he had had with [his step-father]”. However, that fight occurred many days earlier and, as explained above, the complainant had in the interim been friendly with the appellant. Also, on this occasion, she had remained outside alone with him by the fire after others who had been there moved inside. It was open to the jury to consider that from the appellant’s perspective, he would not have realised the complainant was allowing sexual intercourse to occur out of fear of him.
On a view of the complainant’s evidence most favourable to the appellant it was open to the jury to infer that, from the appellant’s perspective, the complainant had been friendly with him, had reciprocated his romantic interest in her by sitting on his lap, and had, after initial reluctance on being moved to a secluded location, chosen to move down to be with him on the ground and allowed him to remove her clothing and embark upon sexual intercourse. It was in turn open to the jury to infer these facts potentially provided reasonable grounds for him believing she consented to the ensuing sexual intercourse with him.
It was of course open to the jury to infer to the contrary, having regard to other features of the case. Those features included that the complainant had said “no” when first pulled back by the appellant after they arrived at the side of the house, that the appellant was “sort of” or “probably” pulling her when she dropped to the ground, the appellant’s awareness of the complainant’s youth relative to his and the fact the appellant did not exercise the opportunity which he had in the police interview to lay claim to believing the complainant consented to intercourse with him. However, it was no part of the trial judge’s role to assess the relative strength of the competing inferences. As the above review of authority demonstrates, even if the circumstantial evidence of honest and reasonable mistake of fact was weak or tenuous the trial judge was obliged to leave the s 24 defence for the jury’s consideration.
This was not a case like Millar or Makary, where the facts were incapable of potentially grounding an inference that there were reasonable grounds for the appellant’s mistaken belief. On the evidence most favourable to the defendant, the inference that the appellant held an honest and reasonable but mistaken belief the complainant was consenting at the time of the sexual intercourse in count 1 was a sufficiently realistic possible inference that the jury might have entertained a reasonable doubt about it. That is not to say the jury would have entertained a reasonable doubt about it but that was a matter for them, depending upon what view they took of the facts.
The error here is that the learned trial judge encroached upon the jury’s role, allowing his view of the facts to obscure an arguable view of the facts which should have been left for the jury’s consideration.
The error in not leaving mistake of fact to the jury on count 1, was an error of a character making a re-trial on count 1 inevitable. However, it was also an error which compromised the fair trial of the appellant generally, not merely his fair trial in respect of count 1.
It is inevitable that the defence of mistake of fact on count 2 was made weaker by reason of it not being open to the jury to consider it in respect of both counts. Let it be assumed that from the jury’s perspective they were satisfied on both counts that sexual intercourse occurred without consent. The counts were only separated by two nights. Considerations bearing upon the probability or improbability of an honest and reasonable mistake at the time of count 2 were not confined to events solely around the time of count 2. Those considerations necessarily included the past relationship of the players and obviously included any past sexual interaction, particularly whether or not it had been clouded by a misunderstanding about consent on the appellant’s part. If there was a prospect of such misunderstanding having occurred two nights earlier that would have been relevant to the jury’s assessment of the probability or improbability of an honest and reasonable mistake occurring at the time of count 2. The error in not allowing the jury to consider that prospect heightened the probability of the jury rejecting the possibility of such a mistake at the time of count 2.
Putting it another way, if mistake of fact had been left to the jury on count 1 they might have concluded mistake of fact had not been excluded beyond reasonable doubt on count 1 and acquitted on count 1. That would have heightened the appellant’s prospect of raising a similarly grounded doubt on count 2.
The error wrongly deprived the appellant of the opportunity of the jury taking into account matters bearing upon whether there had been a mistake of fact in count 1 when considering whether there had been a mistake of fact in count 2. The overlapping of considerations relevant to the defence of mistake of fact on both counts makes it impossible to conclude the error infecting the verdict in count 1 did not have any impact upon the verdict in count 2. The conviction on count 2 cannot be saved by an application of the proviso.
The appellant’s success on this ground should result in the convictions on both counts being quashed and a re-trial ordered.
Ground 3 – Undue restriction on defence counsel’s address on mistake of fact
Prior to addresses the learned trial judge expressed the view that defence counsel was precluded from asserting in the positive during his address that it was open to the jury to conclude the appellant had made an honest and reasonable mistake of fact. Rather his Honour expressed the view that defence counsel could go no further than say that the prosecution had not excluded the defence beyond a reasonable doubt.
The genesis of the issue lay in this exchange the preceding day:
“HIS HONOUR: Now, Mr Taylor, apropos our exchange prior to lunch, about mistake of fact and – and the circumstances that have come into play, there are two things that I’ll need you to give me assistance with, in terms of the summing up. The first is the extent to which the defendant is entitled, positively – and this is – actually, I should take it back a step. The interchange that we had before lunch, I understood the effect to be that submissions will be made positively in the defendant’s case that, in the alternative, there was a reasonable and honest mistaken belief as to consent.
MR TAYLOR: Yes. Based on the complainant’s version.
HIS HONOUR: What I need some assistance with is whether the authorities allow or permit the defence to run alternatives in that way, which are mutually exclusive. That is, your client’s hypothesis is – or the hypothesis is, it never happened, in contradistinction to, well, and then if it did happen, it was an honest and reasonable mistake. That is a positive case; I’m not saying you can’t attack the credibility of the complainant’s evidence about whether or not she should be believed or not. But to go the next step of saying “But there was, in a positive sense, an honest and reasonable mistake”.”
His Honour then went on to query what effect an accused’s forensic choice in putting forward a particular factual hypothesis or version of events has on the trial and the submissions that can be made. His Honour then went on to say:
“So I was – I wanted to make sure that, Mr Taylor, if you’re going to positively run mistake of fact, one, that it’s legitimate for you to do so; and what goes hand in glove with that is the extent to which I can – the extent to which authorities might say, as the judge in the summing up, I’m permitted to draw those alternatives to the jury’s attention … and explain to them that there is … inconsistency …”
Argument on this topic ensued prior to addresses. The following extracts convey the effect of the ensuing exchange:
“HIS HONOUR: We’ll do it in stages. Your case is not a mistake of fact case. That’s the first, because that would be completely inconsistent with your client’s version to police and, indeed, the manner in which the complainant was cross-examined. That’s step 1. Step 2 is are you – what can you then make of – what are you entitled to do about mistake of fact that arises on the evidence. You are constrained, as I see it, to – you are constrained by your instructions and the case you put to really no more than saying the Crown, on its evidence, cannot negative the defence. I can’t see you going any further than that on the instructions and the evidence.
MR TAYLOR: I can’t say that Mr Forrest contends – that’s – your Honour, if I break it down to that most simply - - -
HIS HONOUR: Yet, that’s basically where we get to.
MR TAYLOR: Because – yes. I cannot put something inconsistent with my instructions.
HIS HONOUR: Correct. That’s - - -
MR TAYLOR: All right. That’s the first – I think that’s what your Honour was - - -
HIS HONOUR: It just cannot go that high.
MR TAYLOR: The question then is whether or not I can say on the evidence, then, there is a positive case even on the prosecution evidence. And my submission is that I’m not estopped from doing that if I put it in those terms, rather than terms of the case as he had suggested or that there was some other evidence. My – and it’s probably a very fine distinction, your Honour, but my submission is - - -
HIS HONOUR: It is.
MR TAYLOR: - - - that I’m entitled to – once there is evidence upon which that inference or conclusion could be drawn, that I’m entitled to advance that to the jury that they might accept that.
HIS HONOUR: I don’t think you can go – as I say, I don’t think you can ask the jury to accept that the defendant had an honest and reasonable mistaken belief. That would – that is completely contrary to your instructions on the basis of the case that’s put. As I say, it’s a subtle distinction. I have no difficulty with you saying the burden is not discharged in relation to that defence because when you look at the evidence, there’s inferences available that suggests one way or the other but to go that next step and put it as highly as you’ve just put it is what troubles me.”
The exchange continued a little later:
“HIS HONOUR: … But I can’t do any more than tell you what my concern is, and I’m not presently persuaded to say I’m going to make an order that says you can’t say X or Y because I don’t know what you’re saying. You haven’t put before me the precise language.
MR TAYLOR: No. No. And I’ll have to revise the precise language. If I understand your Honour correctly, your Honour’s not saying you’re going to constrain me, however, your view is the way in which your Honour will give to the jury, provide to the jury - - -
HIS HONOUR: Correct.
MR TAYLOR: - - - will create or could create an embarrassment for myself if your Honour’s - - -
HIS HONOUR: Well - - -
MR TAYLOR: It - - -
HIS HONOUR: - - - I wouldn’t put it that highly, but if it’s put on the basis that it strikes me as being inconsistent positions, you could work on the basis that that is something I will say to the jury and draw to their attention.”
The exchange later continued:
“MR TAYLOR: I’m going to have to think about how I couch things, your Honour, in light of your Honour’s, I suppose, it’s a ruling in relation to what defence can go to the jury and on what terms.
HIS HONOUR: I should say, I haven’t – I’m not there yet on both counts. We have to cover that, as well, but if mistake of fact does go in any form to any count to the jury, I suppose, you can take it as a ruling that if the submission is made positively that the jury could be satisfied on the evidence that the defendant did have an honest and reasonable mistaken belief, and that comes from defence, that I’ll be making comment about that in the summing up to the jury about it being inconsistent with the defendant’s version and the case run on behalf of the defendant.”
Argument continued along a similar line for a while, culminating in his Honour saying:
“I’ve made my position clear, Mr Taylor. I just don’t think you can assert as strongly as you can be satisfied he had an honest and reasonable mistaken belief because that is inconsistent with your – that’s inconsistent with the defence case. You are, however, entitled to make submissions about whether the Crown have discharged its onus in relation to the defence which is raised on the evidence.”
The position taken by the learned trial judge was, with respect, misconceived. There is nothing novel or unethical in the criminal jurisdiction, or the civil jurisdiction for that matter, in defence cases being run in the alternative. The learned trial judge seemed to perceive that defence counsel was precluded from arguing in the positive that the jury should infer the appellant had made an honest and reasonable mistake about consent because it was inconsistent with the appellant’s assertion in the police record of interview that there had been no sexual intercourse. It is not entirely clear why he felt that inconsistency should so constrain defence counsel’s address. Perhaps his Honour thought defence counsel was ethically constrained from arguing for a conclusion to which the appellant had not laid claim in his record of interview.
Whatever the reason for it, his Honour’s view was at odds with the onus of proof in a criminal trial and the right of the appellant’s counsel, clearly conferred by s 619(3) of the Code, to “address the jury upon the whole case”.
Defence counsel was entitled to address on all of the prospective conclusions open to the jury on the evidence in the case. One such conclusion was that sexual intercourse occurred and occurred without the complainant’s consent. An incident of that conclusion would have been that the appellant’s account to police was rejected. In anticipation of that potential conclusion defence counsel was entitled to argue for the inference, based on the evidence led by the party carrying the onus of proof, that the appellant had sexual intercourse mistakenly believing the complainant was consenting. Such an argument would not have been misleading – it would have been clear to the jury it was an argument based on the complainant’s testimony and not based on the appellant’s account to police.
As a matter of law the jury were obliged to acquit if the inference of mistake of fact was not negatived beyond a reasonable doubt by the prosecution. But that did not mean the appellant’s counsel could only argue for the inference in the negative. Casting arguments in positive language is an elementary tool of effective communication and persuasion; an elementary tool of effective advocacy. The learned trial judge wrongly deprived the appellant’s advocate of that tool in confining him to arguing the negative proposition that the prosecution had not discharged its onus of excluding mistake of fact. The most effective way of arguing the prosecution had failed in that regard was to advance the positive argument that the evidence showed the appellant had made an honest and reasonable mistake. The learned trial judge erred in prohibiting the appellant’s counsel from so arguing the case.
I do not consider that error was overtaken by the ensuing forensic decision of defence counsel to not address on mistake of fact at all. That was certainly a forensic decision, but it was obviously a decision caused by the trial judge’s error.
The circumstances do not suggest it was a decision prompted by the supposed difficulty of addressing on mistake of fact in circumstances where the defendant had denied sexual intercourse. For reasons already explained, there was a strong case that sexual intercourse had occurred, meaning the appellant’s best chance of acquittal was the possibility that he believed intercourse had occurred consensually. It was a sufficiently important issue that it was unlikely to have been abandoned because of the challenge, hardly demanding to a professional advocate, of arguing the defence case in the alternative. Moreover, as the above quoted exchanges demonstrate, until the learned trial judge made the above discussed erroneous ruling, defence counsel had expressed his intention to address on mistake of fact. The conclusion is irresistible that defence counsel abandoned his avowed plan as a result of that erroneous ruling.
The appellant has made good ground 3. This provides an additional reason why, in respect of count 2, the conviction should be quashed and a re-trial ordered.
R v Millar  1 Qd R 437 at 439  (McPherson JA).
R v Makary  QCA 258 at  –  (Sofronoff P) and R v IA Shaw  1 Qd R 641 at 646 (Davies and McPherson JJA).
 1 Qd R 641 at 646.
Loveday v Ayre; Ex parte Ayre  St R Qd 264, 267-268.
Recently, for example, see McKell v The Queen (2019) 264 CLR 307 where the Court emphasised the importance of trial judges not conveying their views to the jury about disputed issues of fact.
(1990) 171 CLR 207, 214-215.
 Qd R 15, 18, 20.
(1987) 162 CLR 645, 665.
Also see, to like effect, the observations of Keane JA as he then was in R v Corry  QCA 87.
(1995) 183 CLR 58.
(1990) 171 CLR 312.
(1995) 183 CLR 67-68.
As was, for example, acknowledged by Sofronoff P in R v Makary  2 Qd R 528, 545.
Pemble v The Queen (1971) 124 CLR 107, 117-118; Van Den Hoek v The Queen (1986) 161 CLR 158, 161-162.
(1975) 133 CLR 82, 105.
(2005) 227 CLR 319.
Ibid, 331, citations omitted; the latter quoted passage was from Green v The Queen (1971) 126 CLR 28, 33.
(2009) 240 CLR 95.
 2 Qd R 528, 544.
Also see, for example, R v Cutts  QCA 306.
 2 Qd R 528, 549.
Adopting the language and reasoning of the plurality in Masciantonio v The Queen (1995) 183 CLR 67-68, quoted earlier in these reasons.
At AR 358.
 1 Qd R 437.
 2 Qd R 528.
See e.g. George Hampel, Advocacy Manual: The Complete Guide To Persuasive Advocacy (Australian Advocacy Institute, 2nd ed, 2016) 132.
- Published Case Name:
R v FAV
- Shortened Case Name:
R v FAV
 QCA 299
Fraser JA, Mullins AJA , Henry J
17 Dec 2019
No Litigation History