SUPREME COURT OF QUEENSLAND
R v Sunderland  QCA 156
SUNDERLAND, Lee James
CA No 182 of 2019
Court of Appeal
Appeal against Conviction
District Court at Rockhampton – Date of Conviction: 4 June 2019 (Burnett DCJ)
Date of Order: 20 February 2020
20 February 2020
Sofronoff P and Morrison and Mullins JJA
Order made 20 February 2020:
CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where a jury found the appellant guilty of one count of rape (count 2) – where the jury acquitted the appellant of one count of indecent assault of the same complainant (count 1) – where the complainant was 16 years’ old and was a family friend of the appellant – where the complainant regularly cleaned the appellant’s home – where the appellant’s hand began to rub the complainant between her legs in the area of her vagina (count 1) – where the complainant felt frozen and had made no overt verbal or physical protest against the appellant’s touching – where the complainant went to leave the appellant’s home and the appellant locked the door to prevent her from leaving – where the appellant encouraged the complainant to give him a massage – where the complainant massaged the appellant and the appellant then massaged the complainant – where the appellant digitally raped the complainant (count 2) – where the complainant made several statements to demonstrate that she was not giving her consent – where the appellant submits that there was no basis to differentiate between the verdicts – whether the verdicts are inconsistent – whether the jury ought to have acquitted on both counts – whether the inconsistent verdicts demonstrate that the conviction on count 2 was unreasonable and should be set aside
Criminal Code (Qld), s 245, s 348, s 349, s 351, s 352
Criminal Law Amendment Act 2000 (Qld)
Alford v Magee (1952) 85 CLR 437;  HCA 3, cited
Commonwealth v Tuck (1951) 82 A 2d 283, cited
R v FAV  QCA 299, cited
R v Case (1850) 169 ER 381;  EngR 99, cited
R v Day (1841) 173 ER 1026;  EngR 86, considered
R v Makary  2 Qd R 528;  QCA 258, explained
R v Shaw  1 Qd R 641;  QCA 45, considered
R v Sutton (2008) 187 A Crim R 231;  QCA 249, cited
R v Wollaston (1872) 12 Cox CC 180, considered
A Hoare, with T Morgans, for the appellant
McGowran & Cagney Lawyers for the appellant
SOFRONOFF P: A jury found the appellant guilty of one count of rape. The jury acquitted the appellant of one count of indecent assault of the same complainant. The appellant appeals his conviction on the ground that the inconsistent verdicts show that the guilty verdict must have been unreasonable.
At the time of the events that were the subject of the charges, the complainant, to whom I shall refer by the pseudonym Gayle, was 16 years old. The appellant was a 57 year old family friend who lived nearby. The following was her evidence.
Gayle’s sister used to clean the appellant’s house and then Gayle took over this job. She was paid between $50 and $70 depending upon how long the job took. The arrangement was for the appellant to leave a hidden key and Gayle would attend to clean the house while he was at work. Gayle did this about five times and then, on 30 November 2017, at about noon while Gayle was engaged in cleaning the appellant’s house, he came home.
Gayle was in the kitchen and they began talking. The appellant asked her how was school. He asked how the cleaning was going. Then he began probing Gayle’s sex life. He asked about her boyfriend. He wanted sexual details. Gayle tried to change the subject. She asked the appellant about his work. The appellant moved to stand beside her. He showed her his business card and she complimented it. She began to feel awkward and told him that she had to go. The appellant said, “You’re good at things… What else can I pay you for?” He began to talk about his back pain. He needed a massage, he said, and asked whether Gayle had any recommendations. He moved even closer to her. Gayle said that it “didn’t feel right”. Again she said that she had to leave.
The appellant moved still closer and began to touch Gayle “down the side” of her body. He told her how good her figure looked, said she had “the most beautiful curves” and began touching her around the hips. He moved his hand between her legs. Gayle was wearing tightly fitting gym pants. The appellant rubbed her between her legs in the area of her vagina. Gayle felt “frozen”. He was “continually touching” her. His hand went inside her clothing and touched her between her legs. This was count 1.
The appellant left the kitchen and went into the adjacent lounge room. Gayle followed intending to leave. She expected the appellant to meet her at the front door as she left and she waited for him there. Instead, he came back with a container of baby oil. He had closed the louvre windows, which Gayle had opened earlier, and he went to the front door and, with a key on his keychain, he locked it.
The appellant told Gayle that he thought that she would be “good at a massage”. He said that his own children thought that he was great at massages and they said he had “magic fingers”. She said, “No, I’d make your back worse”. She said, “I’m not good at massages”. He said, “Give it a go. You’re, like, always doubting [yourself]”. He put his hand out and directed her to the bedroom. Gayle “felt like [she] couldn’t escape from that.” He said, “Come to my bedroom”. He ushered her to the bedroom. He went inside.
Gayle stood in the doorway to the bedroom. The appellant took off his shoes, then his pants and, finally, his shirt. He was stripped to his boxer shorts. Gayle remained in the doorway. The appellant said, “Just try giving me a massage. Just, yeah, try”. Gayle stepped closer. He put the bottle of baby oil into her hands and lay down on his stomach. Gayle did not want to touch him. She touched him with just two fingers, pushing between his shoulder blades. The appellant said, “You lay down. I’ll show you how it’s done”. He pushed himself up onto his knees on the bed. Gayle lay face down, fully clothed. The appellant sat over her, straddling her legs. He oiled his hands. Gayle was wearing a loose t‑shirt and he began to rub her back just above the waistline and under her shirt.
The appellant lowered Gayle’s pants, exposing her buttocks. He massaged her buttocks and rubbed his hands up to her shoulders. He moved his hands below the strap of her bra, rubbing oil into her back. He then pulled Gayle up onto her knees. He continued rubbing her body, moving his hands between her legs, over her buttocks and up to her back. Gayle could feel the appellant’s penis against her. The appellant then inserted his fingers into Gayle’s vagina. He did this two or three times. This was count 2.
Gayle felt like she “wouldn’t be able to get out of that situation”. She said in evidence that she “had said no so many times, and he was a [sic] older man. Like, I couldn’t physically, like, beat him to get past him”. She “wiggled a bit to try and get out of the situation”. The appellant said, “I’m so sorry. I didn’t mean to make you feel uncomfortable… Are you okay?” Gayle remembered shaking and she remembered saying, “I’m fine... I just need to leave”. The appellant said, “I’m so sorry… I didn’t mean to upset you”. He said, “Just wait there. I’ll grab money and grab my car keys to… take you home”. The appellant dressed himself. Gayle walked into the lounge room. The appellant pressed $150 onto her, which was double or triple her usual pay, and she unlocked the front door and left. Gayle went home and phoned a close friend and told her that she felt “disgusting and so oily and just dirty”. She had a shower. Her friend told her to report what had happened immediately.
In cross-examination Gayle agreed that she had given a statement in which she had said:
“I stopped in the doorway of Lee’s bedroom, as I really didn’t want to go in there. I was really hoping that Lee could pick up on the vibe that I really wasn’t into this and my hesitation was obvious enough for him to notice.”
Then followed this exchange:
“Are you saying that because you didn’t actually ever say to him, “Don’t do this,” or, “Don’t touch me,” or express your lack of consent to him?---I never consented.
But you didn’t tell him you weren’t either, did you?---That isn’t consent.
Sorry?---That isn’t consent.
Did you ever say to him, “Don’t do this to me”? That’s all I’m asking you?---I don’t know.
Yeah – because I – is that why you’re using that expression here, that, before you even go into the room, you’re saying, “I’m hoping he could pick up on the vibe.” You were hoping that he could see that you were feeling uncomfortable?---Because I – I don’t know.
Okay – because, [Gayle], I’m not suggesting that you weren’t feeling uncomfortable. I’m not putting things to you about how you may or may not have been feeling. What I’m simply just asking you is do you agree with me that the reason you’re talking about you hoped he could pick up on this vibe, etcetera, is because you weren’t simply telling him to leave you alone or you wanted ---?---I said no plenty of times.” (emphasis added)
Later, there was the following exchange:
“And what you’re telling us, I think, is that the reason you did that was you were trying to distract him or take him away from asking you questions that you considered to be personal and inappropriate?---Yes.
Is that right? Okay. So, once again, I’m understanding that – and I’m not blaming you for it. I’m just asking if you’ll confirm this. I’m understanding that you didn’t actually say to him, “Look, I feel embarrassed about you asking me these personal questions” or “I don’t want you asking me pers [sic]” – you didn’t actually say that to him. You tried to change the subject instead; is that---?---Correct.” (emphasis added)
Later in cross-examination Gayle accepted that during the events in the kitchen, while the appellant was touching her between her legs, she “couldn’t respond because [she was] frozen ... [and she] was not saying anything … not moving …not doing anything”. Gayle acknowledged that she had not reacted in a physical way to stop the appellant’s touching in the kitchen. She agreed with the proposition that “this is all taking place without you trying to stop him, because you were frozen”. She accepted that, while in the kitchen, she did not say “I don’t want you to touch my vagina with your hand”. She accepted that she was hoping “he’d pick up on the way [she was] acting”.
The appellant was interviewed by police and the record of interview was played to the jury.
During the interview the appellant accepted that he might have brushed up against Gayle accidentally in the kitchen. He denied touching her vaginal area but admitted that he might have brushed up against her accidentally and that she “might see it that way”.
The appellant told police that he had mentioned to Gayle that he had a headache and said that she had agreed to massage his back and his neck. He said that he could not remember who had come up with the idea but remembered that it was “probably me” who had suggested that he should lie down for the back massage. He admitted to police that he had removed his pants and gave as his reason that “probably just for, ah, it was a hot day”. After Gayle had massaged him he suggested that he would massage her. He admitted that he had not been trained to give massages but said that people told him that he “seem[ed] to have a natural touch for this”. He said that Gayle lay face down on his bed and agreed to take off her t-shirt. He said that she also agreed to take off her bra. According to the appellant, he asked Gayle if he could remove her tights and she agreed and pulled them off. He said his intention was to give her a “relaxing massage” and “no more than that”. He admitted massaging her “down around the, the, the buttocks” and “through the lower back because it’s all joined together”. He denied deliberately touching Gayle’s vagina or inserting his fingers. He claimed that even while this girl was lying naked below him, he had no sexual interest in her and did not become sexually aroused.
When asked why he had paid Gayle double or triple her usual payment, his answer was this:
“Um, maybe I felt very, very grateful for the fact that she’d mass-, that she’d cleaned for … [y]ou know at the drop of a hat basically.”
He denied that the money was payment to her for the massage.
The defence was that Gayle’s allegations about indecent assault in the kitchen and rape during the massage were untrue. The appellant did not give evidence and called no evidence.
The appellant submitted that there was no “basis to differentiate between the verdicts” and so a reasonable doubt about count 1, on which the jury acquitted, ought also to have existed in relation to count 2. The appellant argued that there was “nothing about the quality of the evidence, as between the counts, that explains the differences in verdict”. It follows, it was submitted, that “it was neither logical nor reasonable for the jury to distinguish the effect of the complainant’s evidence as between count 1 and count 2”.
The respondent submitted that there was a relevant difference between Gayle’s account in relation to count 1 and Gayle’s account in relation to count 2 and that this difference lay in her evidence about lack of consent.
As can be seen from Gayle’s evidence in relation to count 1, she accepted that she made no verbal or physical protest. She said that she was “frozen”. Although at one point during cross-examination Gayle asserted that she had “said, “No” plenty of times”, she later accepted that what she meant was that she had told the appellant that she did not want to massage him.
There were the following differences in her evidence on each count. First, on count 1 the complainant gave no overt indication that she was not consenting to being touched beyond what might have been perceived from her “frozen” reaction. To use defence counsel’s description, to which I will refer later, she did not “indicate a lack of consent”. On count 2 she made several statements to show that she was not giving her consent.
Second, on count 1 the offence was touching the complainant’s body through her clothing. On count 2 the criminal act was penetration of the complainant’s vagina. Even if the jury thought that Gayle’s attempts to avoid participating in the massage were not conspicuous, and even if the jury thought that Gayle had actually agreed to being massaged, there was nothing at all on the evidence that could reasonably have been regarded as the giving of implicit consent to vaginal penetration as part of a massage. Consent to being massaged is not consent to sexual penetration.
The different verdicts did not have to depend upon any rejection of Gayle’s evidence on count 1 and the verdicts were not inconsistent with an acceptance of all of it having regard to how the defence emphasised the lack of objection being made to the acts done in the kitchen and how the same argument would not stack up on count 2. It follows that, for those reasons, the jury’s different verdicts cannot be regarded as irrational and the appeal should be dismissed.
However, there is a further reason to explain the different verdicts consistently with their being rational decisions. That reason concerns how the issue of consent was treated at the trial.
In her evidence-in-chief the complainant was asked about consent in relation to the events in the kitchen:
“And I should have asked earlier, did you consent to him touching your vagina in the kitchen?---No.”
The prosecutor said little about consent to the jury. At the beginning of her address, she pointed out that the appellant had touched Gayle in the kitchen and “she didn’t say no”. She went on, “She didn’t stop him, so he went further”. She told the jury that “consent is not something that you need to worry yourself with”. The prosecutor said that it was for the jury to determine whether they accepted Gayle’s evidence and that they “need to be satisfied beyond reasonable doubt whether [they] accept [Gayle] when she says that happened”.
The prosecutor cannot be criticised for narrowing the case in that way. The defendant’s case was to deny that he had indecently touched Gayle in the kitchen; the case was not that Gayle had consented to being touched. Similarly, he denied that he had done the acts alleged as count 2.
Defence counsel’s address followed that of the prosecutor and he spoke at length about consent. In the course of his submission about the part of the record of interview in which one of the police officers had referred to Gayle’s “freezing” upon being touched, the appellant’s counsel said to the jury:
“Now, it seems that what he’s saying there is, “Well, you know, even if she didn’t consent” – sorry, “even if she didn’t express a lack of consent then, ‘I’m not consenting.’ You should have understood that she was frozen because of the situation and you know, really, the only way you could have got consent, I suppose, is to have something in writing or have a notary public or a lawyer or a judge or a jury of 12 there as witnesses that she’s consenting.
I mean, this is just honestly getting ridiculous, but I’m pointing it out because this is what he was subjected to.” (emphasis added)
Later in his address, defence counsel said:
“It’s the case here where you’ve got to be satisfied beyond reasonable doubt that what she says occurred actually occurred without her consent. Okay? The defence is saying, even on her evidence it’s not even clear that she has vocalised or given that lack of consent to Mr Sunderland in any event.
In other words, the defence is saying here “Look, the way things have transpired here, about all you’ve heard from her is that she kept repeating that she said ‘No, no, no, no’ about not wanting to give a massage.” When she was questioned in cross-examination about what she said or what she did to indicate a lack of consent as the massage was taking place with respect to count 2. She wasn’t able to offer anything. And the defence is saying there’s a simple reason for that; it’s because she didn’t.” (emphasis added)
On the substantive defence case, consent had not been a real issue because the appellant denied having done the criminal acts for which there had to be consent. However, the defence did not admit lack of consent for either count and so the prosecution had to prove that element. Defence counsel was entitled to emphasise matters of fact that impinged upon the question of consent and he consequently raised its relevance to the level of a real issue. It therefore followed that it was imperative for the learned trial judge to direct the jury adequately upon consent as one of the real issues in the case.
An absence of consent was always an element of the offence of rape but until 2000 the Criminal Code (Qld) did not define it. In R v Shaw Davies and McPherson JJA said that consent simply denoted the complainant’s state of mind. Because of this, it was strictly unnecessary for a complainant to manifest dissent at the time of the criminal act and a complainant who failed to manifest dissent is not in law taken to have consented. Their Honours said that an absence of express dissent might bear upon whether the complainant did or did not consent. In this case, Gayle’s inaction during the events concerning count 1 was relied upon in this way by the appellant’s counsel.
Section 348 of the Code now provides, relevantly:
“In this chapter, consent means consent freely and voluntarily given by a person …”
Section 348 was inserted into the Code by the Criminal Law Amendment Act 2000 (Qld). That Act also expanded the scope of the offence of rape from its original narrow form, involving a man engaging in penile penetration of a woman’s vagina without her consent, to include offences committed by men and by women upon male or female victims. The Amendment Act also newly inserted, as ways in which the offence of rape could be committed, non-consensual penetration of the vulva, vagina or anus by things other than a penis, as well as non-consensual penile penetration of the mouth.
The definition of consent in s 348 is stated to apply only “in this chapter”, that is to say, Chapter 32 of the Code. Chapter 32 contains s 352(1)(a), the offence of indecent assault:
“Any person who … unlawfully and indecently assaults another person … is guilty of a crime.”
Unlike the definition of rape in s 349, s 352(1)(a) does not use the word “consent”; it uses the word “assault” which is defined in s 245(1) as follows:
“A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud … is said to assault that other person, and the act is called an assault.”
Section 245(1) does not appear in Chapter 32; it appears in Chapter 26.
Chapter 32 cannot sensibly be read so that the definition of consent in s 348 applies only when the word “consent” appears expressly as part of the definition of an offence in Chapter 32, as it does in s 349. If it were read that way it would mean that although lack of consent is an element of every one of the offences referred to in Chapter 32, namely s 349 (rape), s 350 (attempted rape), s 351 (assault with intent to commit rape) and s 352 (sexual assault), the definition in s 348 only applies to s 349 and s 350 and to the element of rape in s 351, but not to s 352 or to the element of assault in s 351 (but it will apply to the other element in that section, rape).
Yet the Code treats offences of a sexual nature as a distinct category of offence. Thus, Chapter 22 contains “Offences against morality”, Chapter 22A contains offences relating to “Prostitution”, Chapter 32 contains offences involving “Rape and sexual assaults” and s 578 makes special provision for indictments charging sexual offences. Section 578 is headed “Charge of offence of a sexual nature” and it permits a person who has been charged with rape under s 349 to be convicted, in the alternative, of an indecent assault under s 352. It would be absurd to interpret s 348 so that a jury had to consider consent for an alternative verdict of guilty of indecent assault in one way and consent in the offence of rape, to which indecent assault is the alternative, in another way.
For these reasons, the definition of consent in s 348 applies to inform the element of assault in s 351 and s 352 in Chapter 32.
As it is now defined, “consent” requires that consent be “given”. This aspect of the definition of consent must not be overlooked.
The giving of consent, in the context of a charge of a sexual offence, involves the making of a representation by one person to another, to the effect that the first person agrees to participate in the sexual act that would otherwise be an offence. Such a representation might be made by words or by actions or by a combination of both. Sometimes the words or actions cannot be understood apart from the surrounding circumstances. In cases where the complainant has communicated neither consent nor dissent by words or actions, the inaction cannot be considered in a vacuum. It too must be considered with all of the relevant circumstances surrounding the sexual act. The circumstances involve matters both past and present. So, inaction in the context of prior acts or words might mean that the complainant has previously given consent which remains operative until withdrawn. This might be established by evidence of relationship or previous interactions between the complainant and accused. So too, inaction, when taken with the other circumstances, may be a manifestation of unwilling submission rather than consent. Indeed, continued or sustained inaction for the duration of a sexual act may be a strong indicator of submission rather than consent. In R v Day Coleridge J said that every consent to an act “involves a submission; but it by no means follows, that a mere submission involves consent”. In R v Wollaston Kelly CB said that “[m]ere submission is not consent, for there may be submission without consent, and while the feelings are repugnant to the act being done. Mere submission is totally different from consent”.
The need for an inquiry of this kind means that the jury has to be given adequate instructions. This is a problem of fact-finding with which the courts are familiar but which may be novel for jurors who have to resolve it. Its resolution depends upon the inferences raised by other circumstances proved by the evidence and a jury cannot be expected to be equipped to resolve that crucial issue unless the trial judge gives appropriate and adequate instructions. It is therefore of the utmost importance that a trial judge should instruct the jury about consent, identify the potentially relevant circumstances in the evidence and give guidance about how the law relates to that evidence.
Almost every appellate case that considers the inadequacy of directions is concerned with the question of whether the directions did justice to the accused person’s case. That is because the Crown cannot appeal an acquittal to be able to complain about the effect of directions upon its own case. However, this case raises an issue about whether the verdicts were irrationally inconsistent with each other and it happens that the questions thus raised invite attention to whether the acquittal on count 1 might have been the result of the directions not doing justice to the prosecution case.
On Gayle’s evidence, the first time the appellant touched her, he did so in a way that was capable of being regarded as indecent and in circumstances in which there was no possible basis upon which the giving of consent could have been inferred. This was immediately after the appellant had questioned Gayle inappropriately about her sexual relationship with her boyfriend, had told her that he was considering whether “he could pay [her] for anything else … to do around the house”, and then immediately propositioned her with a request for a massage. Despite her rejection of this improper proposal, the appellant moved even closer to Gayle and began to touch her on the sides of her body, all the time paying sexual compliments to her, until he finally moved his hand to rub her genitals.
It was in relation to this interaction that defence counsel submitted to the jury that it was “ridiculous” for the police to put questions to the appellant on the basis that, “…if she didn’t express a lack of consent then, ‘I’m not consenting.’” He submitted:
“It’s the case here where you’ve got to be satisfied beyond reasonable doubt that what she says occurred actually occurred without her consent. Okay? The defence is saying, even on her evidence it’s not even clear that she has vocalised or given that lack of consent to Mr Sunderland in any event.”
The jury may well have been under the misapprehension that their task was to determine, among other things, whether the Crown had proved that Gayle had, in the terms used by defence counsel, “vocalised or given that lack of consent to Mr Sunderland”. Regarded in that way, it is not surprising that, even if they accepted the complainant’s evidence about her actual state of mind, the jury was not satisfied that the Crown had proved its case on count 1. On the other hand, by time the appellant did the act charged as count 2, the complainant had, on her evidence, “vocalised or given that lack of consent”.
In relation to count 1, his Honour said that the prosecution must first prove that the appellant had assaulted the complainant:
“Now, in terms of the assault, the question of consent is assessed by consent being freely and voluntarily given. So the person who applies force without the consent is said to assault. The consent then means there must be consent freely and voluntarily given by a person with the ability to know and understand what she is doing in giving consent. So that is the first element. Assault. So, it incorporates those two factors, the touching by consent. Consensual touching.”
It is difficult to know what the jury made of that, however, later his Honour reminded the jury about the complainant’s evidence-in-chief in which she said that she had not consented and concluded, on this topic, that:
“You have got her evidence that it was without consent, so an assault has been established, if you make those findings of fact.”
In a number of other places, the learned trial judge reminded the jury that they had to be satisfied that the complainant did not consent and observed that if they accepted her evidence they would be satisfied. The learned trial judge correctly instructed the jury that if they accepted the complainant’s evidence in its entirety, then they would convict.
However, the jury was not instructed about the possible significance of inaction to the question of consent. Nor was the jury directed that Gayle’s failure to object did not necessarily mean that she was consenting to being indecently touched. The jury should have been directed that the Crown did not have to prove that lack of consent was given but, rather, that consent was not given.
A judge who presides at a criminal trial is required to identify the real issues in the case and to relate the law to those issues. The judge is also required to put fairly to the jury the case which the defence makes and the case made by the prosecution. In some cases, a judge should warn a jury about how not to reason to a conviction or warn or direct a jury about what has to be taken into account before accepting certain kinds of evidence. In many rape trials it will be insufficient merely to tell the jury that the Crown must prove that the complainant did not give consent.
It may be useful to consider how an adequate direction for count 1 might have been given in the present case. The example below cannot, and must not, be treated as a draft that can be cut and pasted into a summing up. Like the examples given in the Supreme and District Court Bench Book, it is a guideline. There is no “magic formula or incantation” that can be invoked in every case to satisfy the burden that the law places upon a trial judge to give appropriate and adequate directions. Each summing up must be tailor-made to fit the requirements of the case at hand. With that strong qualification, the following is a way in which such a direction might have been framed:
- Count 1 alleges that Lee James Sunderland unlawfully and indecently assaulted Gayle. So, before you can find the accused man guilty of this offence, you must be satisfied beyond a reasonable doubt of three things. First, you must be satisfied that the accused assaulted Gayle. Second, you must be satisfied that the assault was unlawful. Third, you must be satisfied that the assault was indecent. I need to tell you more about each of these elements.
- Let us start with the word “assault”. For the purposes of this case, an assault is any kind of touching of Gayle by the accused without Gayle’s consent. I will deal with consent shortly. Here, the relevant touching that the Crown alleges is that the accused man rubbed his hand over the area of Gayle’s vagina as they stood in the kitchen. If you accept her evidence, then you would be satisfied that there was that touching. But that is not enough for a conviction.
- The Crown says that the touching was indecent. The word “indecent” is an ordinary English word. Something is indecent if it offends against currently accepted standards of decency and morality. Context matters. What is natural and appropriate at one place and time may be indecent if done at another place and time. What is natural and appropriate when done by one person to another person may be indecent when done to a different person. You are the representatives of the community and it is you who must apply your knowledge of community standards to the question of whether the accused man’s rubbing of Gayle’s vaginal area, if you are satisfied that he did that, was or was not indecent in the circumstances in which it was done and having regard to the person by whom it was done and the person to whom it was done.
- A touching is only an assault if it is done without consent being given by the person who has been touched. This means that the Crown must also satisfy you that the accused man touched Gayle and that she did not give him her consent. The word “consent” is an ordinary English word but in this context it has a distinct legal meaning. In the context of this case, consent means consent that is freely and voluntarily given. The Crown must prove that consent was not freely and voluntarily given. The Crown must satisfy you that Gayle did not give her consent.
- Now for consent to be given it must be communicated somehow. If you are satisfied that consent has not been given freely and voluntarily, that is to say, if it is not communicated in some way, then you will be satisfied that the Crown has proved this element of the offence.
- The relevant time that there must be a lack of consent is at the moment, or for the period, that the touching is taking place.
- In this case the accused does not say that he mistakenly thought that Gayle gave her consent. So you do not have to consider whether she did things which might have led him to mistakenly think that she was consenting.
- You have heard Gayle give evidence that she did not consent to being rubbed over her vaginal area by the accused man.
- However, her own evidence about her state of mind is only one of the pieces of evidence that you have to consider before coming to a conclusion. You will remember that Gayle acknowledged that during the whole of the events in the kitchen she did not make a verbal protest and she did not do anything positively to signify her dissent, or her unwillingness to be touched. You may remember this evidence in cross-examination:
“Are you saying that because you didn’t actually ever say to him, “Don’t do this,” or, “Don’t touch me,” or express your lack of consent to him?---I never consented.
But you didn’t tell him you weren’t either, did you?---That isn’t consent.
Sorry?---That isn’t consent.”
- You will remember that her explanation was that she felt “frozen”.
- You heard defence counsel ask Gayle, and he made submissions to you, about Gayle not having voiced, or expressed, her lack of consent.
- A person’s omission to voice disapproval or an objection can be very relevant to this matter of consent, in a way that I will deal with shortly. However, I tell you, as a matter of law, that the question for you is not whether you are satisfied that Gayle did not voice or express her lack of consent. The question is whether you are satisfied beyond a reasonable doubt that she did not give her consent.
- Consent can be given in an infinite variety of ways.
- Sometimes inaction, a failure to voice an objection, implies giving consent to what is being done and sometimes it does not imply consent to what is being done. For example, if a man kisses a woman on the lips, and she does not stop him from doing so and she does not object by saying anything, her failure to do or say anything, together with other circumstances, might imply that she has given her consent to being kissed in that way.
- Those other circumstances might be, for example, that she is the man’s wife or sexual partner and he has kissed her many times before without her objection and, indeed, with her previous expressed satisfaction. On the other hand, under different circumstances, a woman’s lack of objection to exactly the same action might not have the same significance. You have to look at the circumstances in order to understand the meaning of inaction in the face of a sexual touching. The lack of objection might be explained by shock, by a lack of time to react, by embarrassment, by fear, by a lack of self-confidence, by not knowing how best to react and so on. Those are obvious kinds of examples to demonstrate that the significance of an absence of an express objection to being touched cannot be appreciated without considering all the other circumstances that can affect the meaning of the lack of opposition to the touching. You have heard Gayle say that she did not do anything, not because she consented to being touched, but because she was, in her word, “frozen”.
- A person may submit to something being done without necessarily consenting to its being done. Submission does not necessarily mean that there is consent. For many reasons a person might submit to something being done, that is to say, a person might not resist or try to avoid its being done, although that person is far from consenting. Submission to touching is not consent that is “freely and voluntarily” given. The circumstances will be important in deciding whether there is consent or whether there is merely a submission without giving consent.
- It is for you what significance you attach to the fact that she did not react in any obvious way. It is for you to consider whether, in all the circumstances that you accept, you are satisfied beyond a reasonable doubt that Gayle did not freely and voluntarily give her consent to the touching.
- In this case, I would suggest that some of the circumstances that you might think are relevant are these. Now, remember what I said earlier. I can direct your attention to evidence and to facts but I do that only to assist you to assemble the pieces of the case together and not to suggest to you in the slightest what view you should form about them. If you think that the matters that I refer to have little to do with the question, then you will ignore them. If you think that the circumstances are relevant to your reasoning, you will take them into account in the way that you think is right. You are the masters of fact.
- Now in this case, the circumstances include the age of the complainant and the age of the accused man. Gayle was a 16 year old schoolgirl at the time. The accused was a 57 year old man. You have seen her giving evidence and you can form an impression about her level of maturity generally at the time as well as an impression about her sexual maturity. You may think that her maturity, whatever you find it to be, is relevant to whether you are satisfied that she did not give her consent freely and voluntarily. You also have the relationship that brought Gayle and the accused together. She was working outside school hours on a casual basis to clean this man’s house, usually in his absence. She had no other kind of relationship with him. She had never expressed any sexual interest in him.
- All the matters surrounding the events that day, including things that I have not mentioned, may be relevant to you in determining the significance of what defence counsel called “not expressing a lack of consent”. The difference in ages and maturity, you might think, are relevant to whether Gayle consented or whether she merely submitted to the accused’s touching. Was she consenting to being rubbed in this way? Or was she merely submitting to something she did not know how to avoid but was not giving her consent?
- At the end, the crucial question that you must answer is whether you are satisfied beyond a reasonable doubt that Gayle did not give her consent, freely and voluntarily, to the accused to rub her between her legs?
- If you are satisfied beyond a reasonable doubt that Gayle did not freely and voluntarily give her consent to being touched in the way alleged, and if you are satisfied of the other elements of the offence, you would find the accused guilty on count 1.
This excursion into the law relating to the giving of consent within the meaning of s 348 was necessary in order to understand whether the failure to give adequate directions to the jury about this issue might explain why the jury acquitted on count 1, in respect of which it might wrongly have concluded that the Crown failed to prove as a necessary matter the “giving of a lack of consent”, but convicted on count 2, in respect of which the defence did not have the same tactical advantage. In my view the way the case was conducted, in the manner described above, also furnishes an explanation for the differing verdicts.
For these reasons I joined in the Court’s order to dismiss this appeal.
MORRISON JA: I have had the considerable benefit of reading the draft reasons prepared by the President. His Honour’s analysis of the different quality of the evidence on the two counts, as explaining the different verdicts, reflects my own conclusions for joining in the orders made at the hearing. I also agree with his Honour’s reasons concerning how the question of consent was dealt with in the directions given at the trial.
MULLINS JA: I rely on the analysis of the evidence adduced at, and the course of, the trial which is set out in the President’s reasons which shows that there was evidence to support the guilty verdict on count 2 and, it was apparent from the manner in which the trial was conducted, the evidence of the complainant in relation to her lack of consent to the touching that was the subject of count 1 was treated as being of a different quality to her overt dissent preceding the rape. It was for those reasons that I joined in the orders dismissing the appeal.
I have now had the benefit of reading the President’s reasons and I agree with his analysis that the acquittal on count 1 is also explicable by the lack of assistance that the jury was given in the directions on the issue of consent in respect of count 1.
  1 Qd R 641.
 And it might also raise for consideration an exemption from criminal liability under s 24 of the Code. Section 24 was not relied upon in this case. Whether the jury should have been directed to consider s 24 does not have to be considered because count 1 was the only count to which it could have applied and the appellant was acquitted on that count.
 In R v Sutton (2008) 187 A Crim R 231;  QCA 249, the Court of Appeal considered whether a complainant’s “passive acquiescence” to sexual touching, or “submission”, was consent for the purposes of an indecent assault. In considering that question, counsel for the appellant submitted that the definition in s 348 did not apply to a charge under s 352. The decision appears to proceed upon the assumption that that was correct, but there was no occasion for any analysis upon the question and the result did not depend upon whether the assumption was justified. It formed no part of the ratio decidendi for the decision.
 R v Makary  2 Qd R 528 at -; see also R v FAV  QCA 299.
 (1841) 173 ER 1026; see also R v Shaw, supra.
 (1872) 12 Cox CC 180.
 See also Commonwealth v Tuck (1951) 82 A 2d 283 (Superior Court of Pennsylvania) to the same effect. In R v Case (1850) 169 ER 381 at 382 Wilde CJ said, “[c]hildren who go to a dentist make no resistance; but they are not consenting parties.”
 In a case in which a complainant did not, as a matter of fact, intend to do anything to “give” consent but in which the complainant’s actions, or failures to act, reasonably imply a giving of consent, the jury will have to be instructed about s 24 of the Code.
 Alford v Magee (1952) 85 CLR 437 at 466.
 Cf. R v Spencer  AC 128 at 135 per Lord Hailsham.
 s 352(1)(a) of the Code.
 s 245.
 s 245.
 s 348.
- Published Case Name:
R v Sunderland
- Shortened Case Name:
R v Sunderland
 QCA 156
Sofronoff P, Morrison JA, Mullins JA
24 Jul 2020
- Selected for Reporting:
No Litigation History