R v CV[2004] QCA 411

SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jones J and I agree with his analysis of the issues raised by the appeal. 

2. As noted therein counsel for the appellant submitted, in relation to the question whether the jury should have been directed on s 24 of the Criminal Code, that the matter had to be viewed as though the appellant had not given evidence because his evidence had obviously been rejected by the jury. No authority was cited in support of that approach. In my view the question whether or not s 24 should have been put to the jury must be considered in the light of all of the evidence. As pointed out by Jones J the appellant’s evidence was that the complainant was not only consenting to sexual intercourse on each occasion, but was an enthusiastic participant in what happened. For that reason defence counsel at trial objected to cross-examination of the appellant relevant to his state of mind. Given the way the defence at trial was conducted, and the evidence of the appellant, the learned trial judge was correct in not directing the jury on s 24.

3. The appeal against conviction should be dismissed.

4. CULLINANE J: I have had the benefit of reading the reasons of Williams JA and Jones J in this matter.  For the reasons which appear in each of those judgments I agree with each that the appeal should be dismissed.

5. JONES J: The appellant, after a four day trial, was convicted of three counts of rape committed between 10 and 11 March 2003.  He was acquitted of a charge of common assault which the complainant alleged occurred a short time before the third act of rape.  He was sentenced to seven years imprisonment in respect of each offence of rape, such sentences to be served concurrently.

6. The appellant appealed to have these convictions set aside on grounds that the convictions were unreasonable being inconsistent with the verdict of acquittal for common assault. By leave the appellant raised a further ground namely that the learned trial judged ought to have directed the jury as to the effect of s 24 of the Criminal Code.  This section, if applicable, would require a jury to be satisfied beyond reasonable doubt that notwithstanding any lack of consent to intercourse by the complainant, the appellant did not hold an honest and reasonable belief that she was consenting.

Background facts

7. The complainant is the wife of the appellant’s brother whom she married in 1998. At the time of these events the complainant and her husband ordinarily resided at B near Ayr in the State of Queensland.

8. The complainant said she first met the appellant in 1999. The appellant however claimed that they had met by chance one evening in 1991 at a party in the Sundowner Caravan Park at Mackay. The appellant stated that when he left that party and returned to his caravan the complainant followed him and they had intercourse which they “didn’t finish”.^[1]  The time and circumstances of the first meeting had relevance to the question of consent.  On the appellant’s account there was no further contact until 1999 by which time the complainant had married.  However, no mention was made on this occasion of that 1991 encounter.  The next contact occurred in a telephone conversation which appears to have occurred in January 2003.^[2]  At this time the complainant’s husband was in Bundaberg looking for work. 

9. In March 2003 the complainant and her husband intended to visit the appellant at his home at Bundaberg. The mother of the two men also resided there. The plan was for the complainant and her husband to stay at the home for about one week.

10. On the journey the complainant and her husband stayed a few days in Mackay. On 9 March 2003 they drove their utility truck directly from Mackay to Bundaberg arriving at approximately midnight. The appellant made a cup of tea and showed the complainant and her husband to the bedroom where they would be sleeping. Because of the late hour and being tired from the journey the complainant said she and her husband decided not to unload the truck but to go to bed in the clothes that they were wearing. For the complainant this consisted of a wrap-around buttoned skirt, a T-shirt, bra and knickers.^[3] 

11. The complainant had with her a young dog which was kept for the night in an airline travelling crate in the garage which was attached to the side of the house. Having finished his coffee and having put the dog in the crate the husband went to bed on the lounge room floor. The appellant, the complainant and her mother-in-law went to their respective bedrooms.

12. Soon after going to her bedroom, the complainant heard the young dog howling, so she went to the garage to comfort it. She left the house by the front door and returned the same way. The pup did not settle and so the complainant again returned to the garage to attend to it. On this occasion the appellant called to her from his bedroom, which had access to the garage through sliding glass doors at the side of the house.

13. As she came to the door the complainant gave evidence that the appellant grabbed her by the arms and pulled her into his room. She tripped over the door sill and fell onto the floor, landing on her back. The appellant moved to a position on top of her, forced her legs apart, pulled her knickers to one side and placed his penis into her vagina and continued the sexual intercourse to ejaculation. Prior to finishing intercourse he told the complainant, “to keep her fucking mouth shut”.^[4]  The appellant then pushed the complainant out of the bedroom.  She said she was stunned, frightened and didn’t know what to do.  She cleaned herself up in the toilet.  Then she heard the pup whimpering again, so she took the pup into the cabin of the vehicle and locked herself in and stayed there until dawn.  When she returned to the house her husband was still sleeping on the lounge room floor and she returned to her bedroom.  She made no complaint to her husband or to her mother-in-law at that time because she “was scared”.^[5]

14. That morning the complainant’s mother-in-law had an appointment with the doctor whose surgery was near the beach. The complainant, her husband and the appellant accompanied the mother to the surgery and went to the beach whilst waiting for her. Whilst at the beach the complainant observed the appellant staring at her which she said “gave her the creeps”.^[6]  Next, the group attended the Bundaberg Hospital to deliver a sample for pathology testing.  The complainant agreed to take the sample to the laboratory whilst her husband and his mother remained in the car.  It became necessary for the appellant to give directions to the complainant as to the location of the laboratory.  In the course of so doing, once the complainant and the appellant were inside the hospital premises, he told her to keep your mouth shut, “otherwise he’d shut it permanently”.^[7]  This remark made her feel frightened.

15. The second incident occurred later that evening. The complainant had put on her nightie and was still wearing a bra and knickers. Her husband had gone to the bathroom to have a shower and the complainant was lying on her stomach on the bed in their bedroom. The complainant alleged that the appellant entered the bedroom wearing only boxer shorts. He rolled her over, grabbed her legs and pulled her towards the edge of the bed, pulled her knickers across and proceeded to have intercourse with her.^[8]  This act lasted two to three minutes proceeding to ejaculation.  The appellant left the bedroom without making any further comment.  The complainant could hear the shower was still running and she went to the toilet to clean herself up.  She did not then tell her husband of this incident because she “was terrified”.^[9]  Her husband again went to his bed in the lounge room. 

16. Later that evening the complainant awoke to find the appellant standing over her with the pillow which he placed briefly over her face,^[10] he then left the room.  These were the circumstances of the alleged assault of which the applicant was acquitted.

17. The final incident occurred on the next evening after the complainant had retired to her bedroom. She had changed into her night attire and was again wearing knickers and bra. The complainant alleges that the appellant grabbed her from behind and proceeded to have intercourse with her but withdrew before ejaculation. During the next afternoon when the complainant and the appellant were alone in the kitchen/dining room area he threatened her again warning her not to tell anyone what had happened or he would kill her.^[11]

18. The complainant and her husband remained in the house for a further five days during which time the complainant said the appellant pretended like he had done nothing.^[12]  The complainant said a further threat was made in a telephone conversation after she had returned to her home in B. 

19. On 28 March 2003, some 17 days after the first incident, the complainant told her husband that the appellant had raped her.

20. The appellant gave evidence that after the incident in 1991 he did not see the complainant again until 1999. By this time she was married to his brother and the appellant himself was in a long-term de facto relationship. There was no discussion about any past sexual encounter on that occasion. In January 2003 when her husband went to Bundaberg looking for work, the complainant telephoned the appellant’s house to contact her husband. The appellant claims it was on this occasion that the complainant raised the topic of their intimacy back in 1991 saying, “We didn’t finish it, we will have to one day”.^[13]

21. The appellant claims there was a further expression by the complainant of a desire to have sex with him during the course of the complainant’s journey from Mackay in a telephone call and again almost immediately after her arrival at Bundaberg just prior to midnight.^[14]

22. The appellant admits that intercourse did occur at the times alleged by the complainant but that in each instance the acts were consensual. He said that the complainant initiated the first act of intercourse by going to his bedroom after she had attended to the pup, he said she kissed and hugged him and agreed to have sex. He said that the act of intercourse took place on the floor of his bedroom because his bed made a noise.^[15]  This occurred after the complainant had removed her underwear and after an attempt at intercourse in a different position was unsuccessful because of the variation in their heights.^[16]  He denied making any threats or using any force.

23. As to the second and third acts of intercourse, the appellant said he went to the complainant’s bedroom when he knew her husband was in the shower. He said that the complainant had consented to having intercourse on each occasion.^[17]  He agreed that he withdrew before ejaculation on this occasion because the complainant had told him she was still able to fall pregnant.  He claimed there were two acts of oral sex – one in the kitchen and one in the bedroom - whilst his mother and brother were present in other rooms in the house.

24. There were some subsidiary matters going to the credit of the parties. These included the recollections of the complainant’s husband about the circumstances at the time of these incidents and the evidence of a Mr Campbell about the circumstances of the alleged meeting of the complainant and the appellant in 1991. But as the only issue that arose for the jury’s consideration was whether the complainant had consented to intercourse it is not necessary to canvass these credit- related issues. By their verdicts, the jury have clearly accepted the evidence of the complainant on the central issue.

25. The verdicts were taken after a retirement of more than four hours, during which time the jury indicated an early agreement on the count of common assault and the learned trial judge had given a direction in accordance with Black v The Queen.^[18] 

The appeal issues

26. The first ground of appeal – verdicts being unsafe and unreasonable – raises the question whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: M v The Queen;^[19] Jones v The Queen.^[20]  It is necessary to be mindful that not only is the jury the body entrusted with the primary responsibility of determining guilt or innocence, it is also in a far superior position to determine the credit worthiness of the parties.

27. On any view of the competing versions the circumstances were quite unusual. It is difficult to imagine that intercourse would occur in those circumstances. Nonetheless, it is agreed that intercourse did in fact occur on the three occasions, albeit each occasion being of brief duration and without romantic expression. There was no evidentiary support for either version on the question of consent. The learned trial judge, in his directions, emphasised the need “to scrutinise the complainant’s evidence with real care and caution”.^[21]  The jury, having regard to the length of its deliberation, appears to have done so.

28. The acquittal on the count of common assault does not of itself indicate that the complainant was not believed about the circumstances upon which the charge was based. The placing of the pillow over the back of the complainant’s head was brief and no damage was caused to her. On the complainant’s case the action appeared to be designed to emphasise the threats that had been made at an earlier time. The acquittal is explicable either as being part of the threatening conduct designed to discourage the complainant from reporting the rape or as being so minor in the overall conduct as not to warrant a separate conviction.

29. Whilst it is difficult to imagine that sexual intercourse – consensual or non-consensual – would be undertaken in the circumstances described, the fact is that it did. The circumstances themselves do not compel a preference one way or the other for the competing claims about consent. The issue for the jury’s determination was clearly identified and there was ample evidence to support the decision. For my part I am not satisfied that the first ground of appeal has been made out.

30. Turning then to the question of whether the learned trial judge ought to have directed the jury as to s 24 of the Criminal Code.

31. On behalf of the appellant, the argument proceeded on the basis that as the appellant’s evidence had been rejected by the jury, the case had to be viewed as though the appellant had not given evidence. His guilt then depended upon the jury being satisfied beyond reasonable doubt on the Crown case alone. The argument continued that those circumstances left open the prospect that the appellant honestly and reasonably believed the complainant was consenting – a belief which the Crown evidence did not negate.

32. The only evidence of any discussion between the complainant and the appellant was that occurring during the first act of intercourse and it was limited to the words “to keep [her] fucking mouth shut”.^[22]  This was said to be consistent with securing silence for the clandestine, but consensual, sexual encounter occurring in close proximity to the complainant’s husband and his mother.  In relation to the second and third acts of intercourse there was no prior discussion, no verbal indication of non-consent and no overt physical resistance.  These circumstances, it was argued, were sufficient to raise s 24 for the jury’s consideration.

33. It is necessary to set out the terms of s 24 which relevantly provides:-

“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 he believed to exist.”

34. Counsel for the appellant referred to the decision of the Court of Criminal Appeal in R v Lyons^[23] to distinguish between conduct where s 24 did not apply and present circumstances.  That case concerned an offender who, without prior discussion grabbed with both hands the private parts of a male complainant in a public toilet frequented by homosexuals.  The offender was charged with an aggravated assault in which, of course, non-consent to the touching was a necessary element.  The Stipendiary Magistrate hearing the charge expressed the view that reliance upon s 24 required the accused to give evidence as to his state of mind.  The Court of Criminal Appeal identified the error in this approach stating (per Williams J at p 299):-

“The cases establish that there is an onus upon the defendant to show that there is evidence of an honest and reasonable mistake fit to be considered by the tribunal of fact, but once that point is reached it is for the prosecution to negative the existence of operative mistake, and the defendant is entitled to the benefit of any doubt that the tribunal of fact may have in that regard: Loveday v Ayre; Ex parte Ayre [1995] St R Qd 264 and Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8.”

All members of the Court of Criminal Appeal came to the view that the evidence before the Magistrate was not, in any event, such as to enliven s 24 and the appeal was dismissed.

35. Counsel for the appellant sought to distinguish that situation of a single encounter with a stranger in such a place to the one confronting the jury here where there was clandestine non-consensual intercourse, not once but three times. The circumstances where the acts took place in such close proximity to the complainant’s husband without obvious objection from her were sufficient on the prosecution case to require a s 24 direction.

36. The respondent argued that the jury was entitled to have regard to the evidence of the appellant and the manner in which the case was conducted. Any suggestion that the appellant may have been mistaken about consent ran counter to the case that the appellant was presenting which was that it was the complainant who in fact initiated the sexual encounter. Counsel for the respondent referred to R v Ugolini ^[24] in which the offender was charged with two counts of rape against each of two complainants.  The issue of mistaken belief as to consent was founded upon prior discussions of earlier sexual activities by the complainants. The question was raised as to the relevance of such conversations to the existence of mistaken belief.  The following passage appears from the judgment of King CJ at p 308:-

“I do not find it easy to see the relevance of the questions which were sought to be asked.  A mistaken belief in consent was not a live issue at the trial.  On the evidence of the alleged victims there could be no room for mistake.  The appellant did not give evidence.  The only version of events emanating from him was that given at the second interview with the police when he portrayed the young women as participating quite enthusiastically in the sexual activity.  On that version there was no room for mistake either.  The questions, if relevant at all, must be relevant to the issue of consent.”

37. The respondent argues that in the present case mistaken belief was not a live issue on either the Crown case or the defence case. The appellant’s version was of enthusiastic participation by the complainant and so there was simply no basis for the operation of s 24. At one stage the prosecutor attempted to cross-examine the appellant on the basis of an acceptance of the complainant’s evidence whether there was any mistake in his mind. The questioning was objected to by defence counsel^[25] and the point was not pursued to any extent.

38. Counsel for the appellant at trial did not seek to raise s 24. Indeed such an approach would have undermined the defence case of overt actual consent following the initiating conduct by the complainant.

39. Nor did the learned trial judge see the need to direct the jury on the point. The fact that defence counsel does not seek such a direction does not relieve a trial judge of the responsibility of giving a direction on any issue fairly raised on the evidence: Van Den Hoek v The Queen.^[26] But for this purpose the whole of the evidence is to be considered.  For the purposes of s 24 there is no requirement that there be specific evidence of the accused’s state of mind.  Such state of mind can be drawn from the circumstances:  Larson v GJ Coles & Co Ltd; Ex parte GJ Coles & Co Ltd .^[27]

40. But the circumstances left for the jury’s consideration resulted in a clear and stark choice to be made on the issue of consent. The non-communication which accompanied the circumstances of the second and third acts had to be considered on the basis of the Crown case of continuing threats by word and implicit in such actions as the appellant staring at the complainant. Also, there is the presence of the appellant in the room with the pillow shortly before the third act. On the defence case there were no threats and no ambiguity about consent, but rather a response to overt consenting words and conduct. In those circumstances the giving of a direction on s 24 would have occurred in an evidentiary vacuum and may well have been seen as harmful to the appellant’s prospects of having his evidence accepted by the jury.

41. The jury must be taken to have accepted the complainant’s version as to the threats. Consequently it is difficult to see any basis for a claim that the appellant was operating under a mistaken belief for the purposes of s 24 and that the appellant has been deprived of a fair trial by any lack of direction in that regard.

42. In my view, the learned trial judge did not err by not giving directions on s 24.

43. I would therefore dismiss the appeal.