SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I have read the joint reasons for judgment of Thomas JA and Jones J in which the relevant issues are identified and facts stated.

2. The evidence of rape against the appellant Walton and of indecent assault against the appellant Harman was strong. The complainant had just turned 18 and was described by one prosecution witness as "a little girl". The complainant and her friend Cathy (Harman's girlfriend) in the complainant's presence, falsely told Walton that the complainant had a boyfriend; this was relevant to and tended to negate consent and mistake of fact as to consent. The complainant had consumed a very large amount of alcohol and was drunk when the alleged offences occurred. She awakened to find Walton having sexual intercourse with her and Harman licking her breasts. She immediately indicated her surprise, distress and displeasure, dressed and left the room. Other witnesses gave evidence of her upset and distressed condition and she made a timely complaint of rape. A medical examination revealed tenderness to the upper inner thigh, an abrasion to the outer lip of the vagina and another abrasion at the posterior edge of the vaginal opening which was still oozing blood-stained serous fluid; these recent injuries were unlikely to have occurred during consensual sexual intercourse. Harman's DNA was found on the complainant's top in the area of the right nipple and DNA consistent with Harman and Walton was found in the left nipple area. Harman lied to police when interviewed and Walton stated he was drunk, had no memory of intercourse, but thought he would have remembered having intercourse had it occurred.

3. Harman gave evidence that he believed the complainant was consenting to his acts and said that Walton had sexual intercourse with the complainant that evening. Walton gave evidence that he had no memory of having sexual intercourse with the complainant although he did not dispute it, accepting Harman's evidence as to this. He did not recall anything until the complainant was sobbing and asking for her clothes.

4. In convicting the appellants, the jury plainly accepted the complainant's evidence and were satisfied beyond reasonable doubt she was asleep when Walton had sexual intercourse with her and when Harman kissed and licked her breasts.

5. Nevertheless, I agree with Thomas JA and Jones J for the reasons they have given that Walton's statement to police was not one that could be treated by the prosecution as a lie demonstrating a consciousness of guilt. Despite the obvious strengths of the prosecution case against Walton, it cannot be said that a properly instructed jury would inevitably convict him had the jury not been told they could treat his statement to police as a lie showing consciousness of guilt. As a result there must be a retrial in the counts against Walton. It is regrettable for all concerned, and especially the complainant, that the prosecution attempted to bolster a strong case with what was obviously not a lie which could safely be relied upon as demonstrating consciousness of guilt.

6. As Harman was convicted of rape only as an aider to Walton under s 7(1)(c) Criminal Code, his conviction for rape must also be set aside.

7. I am not persuaded that, if the alleged act of aiding by Harman of Walton's alleged rape and the alleged act of aiding by Walton of Harman's indecent assault were adequately particularised, no properly instructed reasonable jury could on the facts conclude that one aided the other in the commission of either of the principal offences. Another possibility was, of course, that the appellants independently performed their actions upon the complainant without knowingly and intentionally aiding the other but this is a question for a properly instructed jury to determine. It follows that I would order a retrial for both Harman and Walton on count 1 and Walton on count 2.

8. I agree with the analysis of Thomas JA and Jones J as to the remaining grounds of appeal. I agree that the appellant Harman's conviction on count 2 should be confirmed and that, for the reasons given by their Honours, his sentence on that count was not manifestly excessive.

9. I would allow Walton's appeal against conviction on both counts and order a retrial on each count. I would allow Harman's appeal against conviction on count 1 (rape) and order a retrial but dismiss his appeal against conviction on count 2 (indecent assault). I would also refuse Harman's application for leave to appeal against sentence.

10. THOMAS JA and JONES J:  On 5 February, 2001 the appellants were each convicted of the offences of rape and indecent assault of the complainant, H. The indictment charged Harman and Walton jointly with one count of rape and one count of indecent assault.  The Crown case was that there had been one act of rape (Walton’s) and that Harman aided or assisted him; and that there had been one act of indecent assault (Harman’s act of sucking the complainant’s breasts) and that Walton aided or assisted him. Each has appealed against his convictions and seeks leave to appeal against the sentences.

Evidence

11. The charges related to events which occurred at the home of the appellant Harman in the early hours of the morning of 25 March 1999. At the time, the appellant Walton was a temporary resident in the house and usually slept on a mattress laid out on the floor of the lounge room of the dwelling. The other occupants of the house, when these events took place, were Harman’s mother and her defacto husband who were sleeping in one bedroom, Harman’s brother and cousin sleeping in a second bedroom. The third bedroom was used by Harman.

12. On the afternoon on the previous day Harman met with his girlfriend after she finished work as they had planned to go out for the evening. She was a friend of the complainant and had arranged for the complainant to accompany her and the two appellants on the outing that evening. They visited different nightclubs and in the course of so doing had several drinks with the result that all were affected by alcohol. At the end of these activities, now in the early hours of the morning, the four travelled by taxi from the city to the Harman residence. The complainant had difficulty walking from the taxi into the house and had to be physically assisted by Harman. The complainant entered the dwelling intending “to sleep it off and then go home when Cathy (Harman’s girlfriend) left for work in the morning”.^[1]  She was aware that Harman and his girlfriend intended to sleep together in his bedroom.  She volunteered to sleep in the lounge room where the only available mattress was that previously used by Walton.

13. The complainant was affected by alcohol to such a degree that there were a number of gaps in her memory for events which occurred during the evening. For example, she had no memory of the time between the arrival of the taxi at the Harman residence and her entering that residence. She could not recall Walton being on the mattress with her before she went to sleep but accepted that such a circumstance might be a “blank spot”.^[2] 

14. There is no doubt that she fell asleep on the mattress and she claimed that when she awoke Walton was on top of her thrusting his penis into her vagina and Harman was licking her breasts. She said “What’s going on? No. What’s going on?” and she pushed Walton, who stopped his activities as did Harman. The latter then left the room.^[3]

15. After dressing, the complainant also left the lounge room.^[4] Harman then offered for the complainant to sleep in his bedroom where her friend, Cathy, was still in bed.  The complainant left the house soon after and went to the house of another friend where she made the complaint of being raped.

16. Both Harman and Walton gave evidence.

17. Harman’s evidence was to the following effect. When he and his girlfriend retired that evening they intended to have sexual intercourse. They undressed and engaged in some foreplay, but before the act of intercourse could take place Harman’s girlfriend fell asleep. With a towel wrapped around him, Harman then went into the lounge room. He there saw Walton and the complainant kissing each other. He watched for a while and then joined the pair. He kissed the complainant on the mouth and breasts and then performed oral sex on her. He claims she responded to his attentions by moving in a way which suggested her willingness for this to continue. At some time after the oral sex had taken place, Walton commenced to have intercourse with the complainant.

18. Walton claimed, both during the police investigation and in his evidence, that he and the complainant cuddled on the mattress prior to falling asleep. He conceded that his pants were off by the morning but he could not recall at what stage of the night they were taken off. He claims to have consumed a large amount of alcohol during the preceding day and that he was still drunk at the time of the episode in question. He was asked by the police officers “So, if you’d had intercourse with her you weren’t so drunk that you wouldn’t recall that happening?” Walton replied “Oh, I would have known if I’d had intercourse with her surely no matter how drunk I was”.^[5]

19. Walton conceded that he must have had intercourse with the complainant. This was because of what Harmon had told him^[6] and because forensic testing identified his DNA in swabs taken of the complainant’s vagina and her DNA in swabs taken of his penis.

Grounds of appeal

20. Mr Henry of Counsel who appeared for Harman at trial, and for both appellants on this appeal, argued four grounds of appeal common to the cases of each appellant and one separate ground relevant to their respective cases. The four common grounds are as follows:

1. The learned trial judge erred in directions in respect of the application of s 7(1)(c) of the Criminal Code,  particularly his directions about a “joint enterprise” to commit the offence.

2. The learned trial judge erred in not discharging two jurors, one of whom had business contact with the mother of the complainant and another who had a business contact with the wife of one of the investigating officers.

3. The learned trial judge’s direction in respect of the intoxication of the complainant and resultant loss of memory was inadequate.

4. The combined effect of these matters renders the verdicts unsafe and unsatisfactory.

21. The separate ground in the Walton appeal related to the learned trial judge’s direction on lies.

22. The separate ground in the Harman appeal related to the admission over counsel’s objection of evidence that Harman had worked as a law clerk in a solicitor’s office for a period between being charged with the offence and giving evidence at trial.

23. We deal with each of these grounds in turn.

Harman’s conviction of rape under s 7(1)(c)

24. As appears from the short statement of facts above only Walton actually had sexual intercourse with the complainant. The charge of rape against Harman was made in reliance upon s 7(1)(c) which provides that every person who aids another person in committing the offence “is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it.”

25. At the commencement of the hearing defence counsel sought particulars of the acts by which it was alleged Harman aided Walton in the commission of the offence. After some discussion^[7] the particulars came down to a matter of “encouraging Walton to commit rape by Harman’s actions in licking the complainant’s breasts and in performing oral sex upon the complainant.”

26. There was no communication between the two appellants as to what either of them intended to do in gratifying himself in these sexual activities, nor is there any reason 0to think that Walton was in fact encouraged by Harman’s actions.

27. The learned trial judge dealt with this issue in his summing up in the following terms:-

“What is necessary is that in order to be found guilty as a person who has aided in the commission of a criminal offence you’ve got to know about the criminal offence.  There are some other requirements.  Let me explain it to you this way in the context of this case.  Firstly, members of the jury, there must be a joint enterprise to commit some form of criminal offence.  Now, a joint enterprise can arise in a variety of ways.  It can arise because two people sit down together, have a formal – have a discussion and decide to engage in a criminal enterprise.  It can happen if they actually enter into an agreement. It can also happen though, members of the jury, by conduct.  It can start off by one person commencing to engage in the criminal enterprise and another person joining in.  That’s what the prosecution case is here.  Well, that seems to be the best evidence that’s available of what occurred.

To aid in the commission of a criminal offence you must, by your actions or by your presence, encourage the person who does the act which constitutes the criminal offence.  You must have knowledge that the criminal offence charge was an offence likely to be committed, and you must have intended your conduct to encourage that other person to engage in the criminal conduct.

So there’s four things.  There must be a joint enterprise to engage in criminal conduct; the person who is allegedly guilty of the offence by reason of aiding must have, by his conduct and presence, have encouraged the commission of the offence charged; the person allegedly aiding must have knowledge that the offence charged is likely to have been committed; and the person charged with aiding must have intended to encourage the commission of the offence.”^[8]

28. His Honour dealt with the matter of “joint enterprise” by saying:^[9]

“You must be satisfied beyond reasonable doubt that there was a joint enterprise.  Well, members of the jury, there is no evidence to suggest that they discussed it before hand, before there was any attempt made to remove her clothing.  There’s no suggestion of any verbal agreement to exploit [the complainant] while she was asleep.  Prosecution case, to the best that it can be put, because obviously if [the complainant] was asleep she is not able to say what happened.  The best that can be put is that it evolved.”

29. After giving an example of spectators at a cricket match encouraging others to misbehaviour by throwing beer cans onto the field, His Honour identified the prosecution case in the following terms:

“That, by reason of perhaps one starting to exploit [the complainant] sexually while she was asleep, and the other one coming along and joining in, obviously without objection, but by switching to different parts of [her] body perhaps, that they were acting in a cooperative way, what the prosecution case is, members of the jury, is that you can be satisfied beyond reasonable doubt that there was a joint enterprise to engage in the criminal conduct of exploiting [the complainant] sexually whilst she was asleep.

You’re entitled to draw that conclusion, you can reject that conclusion, but that’s the first stage and you may only convict or start to think about convicting Harman of the offence of rape if you are firstly satisfied beyond reasonable doubt that he was part of a joint enterprise to engage in the criminal conduct of exploiting [the complainant] sexually while she was asleep, in the way they actually the went about doing it.”^[10]

30. Thus, it is seen the learned trial judge dealt with the criminal liability of each appellant under s 7 of the Code in terms of their involvement in a joint criminal enterprise.  The language of joint criminal enterprise is not usually helpful in terms of criminal liability under s 7 as distinct from s 8.  However, there are cases where two persons are charged and the prosecution cannot designate which acts were committed by each.  If the prosecution can show that the criminal acts were performed by one or other or both of them, and that each must have been either the principal offender under s 7(1)(a) or an aider or assister under s 7(1)(b) or s 7(1)(c), the question whether they were engaged in a joint criminal enterprise might be relevant. (cf R v Lowrie and Ross [2001] 1 Qd R 529, 536,541, paras 14 and 35).

31. At common law the criminal liability of such persons is recognised as that of principals in the first and second degree which is comparable with the liability recognised under s 7(1)(a), s 7(1)(b) or s 7(1)(c) of the Code.  (Tangye (1997) 92 A Crim R 545).  In such a case it is appropriate to draw attention to any evidence from which it may be inferred that there was an understanding or arrangement between them to commit a crime, and to proceed to direct along the lines –

“A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime.

…

If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.” (Tangye above at 556 – 557).

32. In the present case the question is whether the evidence permitted such a case to be made out against Harman. What intentional or knowing assistance or encouragement did Harman give to Walton in respect of Walton’s rape? If the evidence stopped with that of the complainant, the evidence does not show anything other than an independent indecent assault upon her by Harman. On her evidence she was already being raped by Walton, and that act was continuing when Harman’s indecent acts occurred. There is no suggestion in her evidence of Harman encouraging Walton to do what he was already doing or of contributing to the overcoming of her resistance. On the evidence adduced by the Crown, the case is consistent with separate acts of gratification by both appellants and there is not enough evidence for any safe inference of an understanding or arrangement or of one assisting the other.

33. But is the position any different in light of Harman’s own evidence? Harman was aware that when they arrived at the house, the complainant was “a little drunk” and she had “a bit of trouble walking”.^[11]  Before retiring he had told Walton not to take advantage of her condition.

34. Harman said when he came into the lounge later Walton and the complainant were already cuddling and kissing and he watched them for a while. Her top was already pulled up exposing her breasts. Harman’s evidence goes on to describe his actions as being to kiss the complainant in the breast region and to perform oral sex on her.^[12]  He claimed the complainant responded physically and by reason of this he believed she was awake.  Harman could not remember whether the complainant’s knickers were removed or whether he assisted in removing them.  In cross-examination he said “her lower body was already bare”.^[13]  He could not remember at what stage Walton had sexual intercourse with the complainant.^[14]  However, it is accepted that logically this action must have occurred after Harman performed the oral sex.

35. This is the only evidence to which the prosecution can point as encouraging Walton to commit rape.

36. The problem for the prosecution is that this evidence does not establish a joint enterprise to commit rape. Nor could such an enterprise safely be inferred on this evidence. It is equally consistent with each of the appellants pursuing an individual quest for self-gratification.^[15]  The redirections given by the learned trial judge did not overcome this fundamental difficulty.  There was no identification of any act which could be relied upon for the purpose of s 7(1)(c).  Although there is room for suspicion of a joint enterprise we do not think that the evidence is a safe or sufficient basis for such a finding.

37. The evidence is not in our view of sufficient calibre safely to sustain Harman’s conviction as a s 7 rape offender. Accordingly, Harman’s appeal on this point should be allowed, his conviction of rape set aside and a verdict of acquittal entered on that count. There is however no basis upon which his conviction for his own admitted acts of indecent assault could or should be set aside. The only possible defence here was consent or belief in consent, and no error exists that could have effected the outcome on that count.

Discharging the two jurors

38. The first application for discharge of a juror followed a disclosure by the particular juror that she saw a woman she believed to be the mother of the complainant hug the complainant during a luncheon adjournment during the course of the complainant’s testimony. The juror recognised the woman as the manager of a local bank where the juror regularly banked for her employer. The communication between the juror and the court came via statements she made to the bailiff and it included her claim that the circumstances would not affect her impartiality. Counsel for each side accepted this as an accurate statement of the juror’s own view but argued that by having that level of association the juror put herself in a position of being less comfortable in making a not guilty verdict than one of guilty.

39. The second application for the discharge of a different juror followed a disclosure by a witness Detective Smith that this juror had until recent times, worked at a bank with his wife. He had recognised the juror whilst he was giving evidence. Detective Smith described the relationship as knowing the juror “on a talking basis”.^[16]  Detective Smith was briefly cross-examined by counsel for Harman who pursued an application to have the juror discharged.  The learned trial judge refused the application because he was not satisfied of any perception of bias in those circumstances and also because Detective Smith was not a controversial witness in the case.

40. Section 56(1)(a) of the Jury Act 1995 provides for the discharge of a jury, inter alia, if:-

“It appears to the Judge.. that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial.”

41. The principles relevant to the discharge of a jury were discussed by the High Court in Webb & Hay v R.^[17]  In the joint judgment of Mason CJ and McHugh J, the test was annunciated in the following terms:-

“It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged and or will not discharge its task impartially”.^[18]

42. The prosecution referred to the decision of the Court of Appeal in R v Edwards & Ors,^[19] relating to the discharge of a juror who acted in contravention of ss 53 and 54 of the Jury Act.  In such a case the relevant inquiry centres upon whether there appears likely to be a “prejudice to a fair trial”.

43. This appeal does not involve any issue of contravention of the provisions of the Jury Act but simply questions the impartiality of two different jurors.  Impartiality is to be determined in accordance with the test in Webb & Hay which involves a consideration of reasonable apprehension or suspicion on the part of a fair minded and informed member of the public. 

44. In each instance, the learned trial judge approached the application with the appropriate test in mind.^[20]  The circumstance in each case is such that it could not be said that the learned trial judge was in error in coming to the view that he did.  There is nothing therefore in this ground of appeal.

The effect of intoxication on the complainant

45. The defence case sought to rely upon the complainant’s memory lapses or “blank spots” for events which actually occurred as leaving open the prospect that she may have by her actions indicated a willingness to be involved in the sexual activity with the appellants but had forgotten about those actions. The argument raised on appeal was that the learned trial judge in his summing up was not balanced in his identification of matters for which the complainant had no memory.

46. The summing up, however, did make a number of general comments about memory and the effects on the memory of the person who has consumed alcohol. The comments were intended to make jurors aware of the need to use their own judgment on these matters. This included the reference to some events being more significant to an individual and therefore more memorable. There was not in the circumstances any need for the learned trial judge to have identified every incident which the complainant failed to remember. The issue of the reliability of the complainant’s evidence was clearly raised in His Honour’s summing up and appropriately left to the jury.

47. In our view there is no merit in this ground of appeal.

The law clerk issue

48. In cross-examination, the learned crown prosecutor questioned Harman about his age at the time of the incident, his then employment and the fact that he had left school in grade 10. She then asked-

“You now say you work with a clerk - or as a clerk in Sydney.  That’s right isn’t it? - - Yes

That’s in fact for a lawyer isn’t it? - - Yes

When did you start that job?”

49. Objection was taken at this point but the question was allowed and Harman answered “approximately seven weeks ago”.^[21]

50. This appellant gave evidence acknowledging his sexual dealing with the complainant against a background of denial to investigating police officers. DNA testing had established that he participated in the sexual activity. This may have left open a suggestion that by reason of his employment in a legal office he would have been aware of the force of the DNA evidence and that this is what brought about a change in his version. The concern of his legal advisers was that the message might be recorded “subliminally” by the jury that Harman had a lawyer’s aid in concocting his evidence.^[22]

51. It was the position of the Crown that Harman fabricated the new account after the incriminating DNA results were known but there was never any suggestion of his being assisted by reason of employment in a lawyer’s office.

52. The learned crown prosecutor had a right to ask questions about Harman’s education, level of functioning and his work experience as being relevant to the issue of his credibility and reliability.

53. The question, in our view, was properly allowed and this ground of appeal fails.

Lies Direction (Walton appeal)

54. The appellant Walton was given leave to add further grounds of appeal namely:-

1. that the learned trial judge erred in giving an Edwards direction on lies; and

2. that the direction given was deficient.

55. The complaint about the lies direction in the case against Walton has to be seen against the background that in the case against Harman a number of significant lies were identified and were properly the subject of the direction discussed in Edwards v The Queen.^[23]

56. In his summing up in the case against Walton, his Honour acknowledged there was a difference. He said –

“The aspect of the lie which is alleged against Chad Walton is somewhat different.  You will recall that in his interview with the police he said he did not recall having sexual intercourse with Keira.  And he said in answer to this question: “You weren’t so drunk that you wouldn’t recall that happening? - - Oh, I would’ve known if I had intercourse with her surely, no matter how drunk I was”.^[24]

57. As to those quoted words, the learned trial judge added -

“You are entitled to take the view, it is a matter for you, that really what he was saying to the police is, “I didn’t have intercourse with her.”

Now, members of the jury, there is no doubt – there is no dispute that that was untrue.  But before – the first stage you must go through before we – you can use that untruth against Chad Walton is that you must be satisfied that it was a deliberate lie.  You see, certainly he’s agreed that he kept quiet about a few things that he could remember”.^[25]

58. By the time of trial, as has been noted above, Walton was admitting that he did have sexual intercourse with the complainant. His Honour’s summing up continued with an Edwards type direction.

59. The statement of Walton which was put by the learned judge to the jury as one that they could regard as a lie was essentially a statement about lack of recollection with the added hypothetical assertion that if he had had intercourse with the complainant he would have remembered it. Such statements were aptly referred to by trial counsel as “fairly muddy”. They are afflicted by a degree of uncertainty. There is a corresponding difficulty in proving that such statements were untrue and that the appellant knew them to be untrue. As such they were a shaky foundation for a direction of the kind referred to in Edwards.

60. Directions of this kind continue to be sought by crown prosecutors in doubtful cases and continue to afford fertile grounds of appeal in cases in which convictions would be otherwise safe. The undesirability of giving an Edwards direction in cases other than those where the necessary factors are clearly present, needs emphasis.  The need for caution by a trial judge before agreeing to give such directions was recognised in R v Brennan–^[26]

“Finally, I wish to enter a caution against the persistent reliance by prosecuting counsel on the phenomenon of lies by the accused as evidence of a consciousness of guilt.  As was decided in Edwards –v- The Queen (1993) 178 CLR 193, the telling of lies is something that in some instances is capable of being considered as circumstantial evidence amounting to an implied admission of guilt on the part of an accused person; but the directions needed in order to correctly explain the conditions in which it is available for that purpose are convoluted and not at all easy for a judge to give, or for a jury to understand.  The result often is to obscure rather than to simplify the issue to be determined.  That is particularly so in a case where, like this, the accused gave one account in his evidence at the trial, after having given another and contradictory statement at an earlier time.  In circumstances like that, the prior inconsistent statement simply forms a basis for doubting the credibility of his testimony at trial.  His admission in evidence that he had told a lie about it on a previous occasion is a factor to be considered by the jury in deciding whether his testimony at the trial is credible.  It adds nothing to the process of assessing his credibility for the jury to be told that, if the explanation given at the trial of the falsity of his earlier statement is itself a lie, it may demonstrate a consciousness of guilt on his part on that or an earlier occasion.  If it was not itself a lie, it is no evidence at all of his guilt, which is the very question which the jury is asked to decide.”  (Per McPherson JA at p 531).

61. The need for sparing use of directions that “consciousness of guilt” may be inferred from an accused person’s conduct or statements has been recognised for a considerable time.^[27]  The need for circumspection and care in the use of this direction was referred to again by the High Court in Zoneff v R.^[28]

62. The statement made by Walton to the police Officer could not, in our view, be classified as a lie of the kind which would justify the use of an Edwards direction. It cannot be said that this incriminatory line of reasoning did not contribute to the jury’s decision, or that the jury if appropriately instructed would inevitably have convicted. Accordingly the proviso should not be applied. There is a satisfactory case to go to the jury against Walton on rape, and he should be re-tried on that count.

Walton’s conviction of indecent assault under s 7(1)(c)

63. In relation to the joint charge of indecent assault, the same remarks are applicable as those mentioned above in paragraphs [23] and [27] in relation to Harman’s liability on the joint count of rape. The basis of count 2 was Harman’s acts of kissing and sucking the breasts of the sleeping girl. Walton’s criminal liability was said to rest on the notion of joint enterprise and the provision of aid or encouragement. The evidence is not sufficient for Walton to be safely and satisfactorily convicted as a secondary offender in respect of Harman’s act. Accordingly he should not be re-tried on count 2.

Summary

64. In summary, whilst there is a satisfactory case against Walton of rape committed by him personally (i.e. under section 7(1)(a)) and a similar case of indecent assault against Harman (under section 7(1)(a)) there is no satisfactory case against either of them as a secondary offender in respect of either count.

65. Consequently Walton’s appeal against conviction on both matters should be allowed, and he should be re-tried for rape only.

Harman’s sentence

66. Harman was sentenced to six years imprisonment for rape and two years imprisonment (concurrent) for indecent assault. Submissions on his behalf were focussed upon the alleged excessiveness of the sentence for rape, but that question has now disappeared. The assault of which he remains convicted was in our view a relatively serious example of indecent assault. It involved the taking advantage of a comatose woman and involved a number of physical liberties. On his own account these included oral sex, but the act the subject of the charge was the kissing and sucking of the woman’s breasts. Even so the circumstances are quite serious and Harman’s involvement no doubt contributed to the serious consequences revealed in the victim impact statement.

67. The applicant was 24 years old at the time of the offence with a criminal record that included convictions for significant offences of violence upon women. He has served imprisonment on previous occasions, the last being a sentence of three years imprisonment imposed in November 1997 for a variety of offences including assault occasioning bodily harm and deprivation of liberty.

68. We do not think that the two year sentence imposed upon him in respect of this offence could be regarded as excessive.

Orders

1.R v Walton

1. Walton’s appeal against his conviction of indecent assault is allowed, the verdict set aside and a verdict of acquittal entered.

2. Walton’s appeal against his conviction of rape is allowed and the conviction set aside, with a direction for re-trial.

2.R v Harman

1. Harman’s appeal against his conviction of rape is allowed, the verdict set aside and a verdict of acquittal entered.

2. Harman’s appeal against conviction of indecent assault is dismissed.

3. Harman’s application for leave to appeal against sentence is refused.