R v SAX[2006] QCA 397

SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  In this appeal I have read the reasons for judgment of Keane JA, and agree with His Honour that this appeal should be allowed.  The evidence raised for the jury’s consideration the issue of whether the prosecution had excluded the possibility that the complainant had acted before and during the sexual intercourse as the appellant claimed she had, but with the complainant later having no memory of those events, because she was intoxicated.  If the jury thought that had happened, it could conclude that the complainant did not have the cognitive capacity to give consent at the time, because she was so affected by alcohol or drugs that she did not know what was happening, and was not able to give consent to it.  That would be an available conclusion.  There would also be another issue, whether or not the appellant honestly and reasonably believed that she did have cognitive capacity and was consenting; or whether the evidence showed that she was so plainly affected by alcohol as to obviously lack cognitive capacity, as the appellant then well knew.

[2] Cases of this nature, where a considerable quantity of alcohol or another drug has been consumed, and when intercourse occurs in circumstances of which a complainant has no recollection of the intercourse or of the prior events, almost always raise for consideration whether there was obvious stupefaction from alcohol and cognitive incapacity, of which a defendant simply took advantage; or whether a defendant mistakenly but honestly and reasonably believed actual consent was given with cognitive capacity.  The issue is not concluded for the prosecution because it establishes to the jury’s satisfaction that a complainant did not have sufficient understanding to know what was happening and give consent to it.  There remains the issue of whether that lack of cognitive capacity was either obvious or also actually known to the defendant, excluding the possibility of reasonable mistake about it. 

[3] At the trial the appellant’s then counsel did raise during the summing-up, but without requesting any further or specific directions, the point that the Crown Prosecutor had made a somewhat subtle shift during the Crown address.  That was by moving the Crown case away from the proposition that the appellant had had sexual intercourse with a woman, who was “blacked out” and unconscious, and towards the proposition that the appellant had taken advantage of a woman who was heavily intoxicated.  That alternative description of the Crown case could undoubtedly constitute rape, but would be likely to raise the possibility of mistake as to consent. 

[4] The evidence the learned judge summarised to the jury in the directions included descriptions from other witnesses, from which the jurors could conclude that it appeared to those people that the complainant appeared intoxicated.  The appellant’s evidence admitted that he thought she was affected by alcohol, and he thought she fell into the water because of that, and had “grabbed me on the crutch” because she was intoxicated. However, he denied realising that she was “very drunk”, or “heavily affected by alcohol”.[1]

[5] It was accordingly very much open to the Crown to prosecute on that alternative basis, of the appellant knowingly taking advantage of a woman no longer capable of understanding what was happening and consenting to it.  But that required that the jury consider whether the prosecution had excluded that the appellant had reasonably believed the complainant did so understand, and consent.

[6]  KEANE JA:  On 14 June 2006, the appellant was convicted upon the verdict of a jury of one count of rape.  On the following day, he was sentenced to six years imprisonment.  On his appeal against his conviction, it was argued that:

(a) the learned trial judge failed adequately to direct the jury on the element of the complainant's cognitive capacity to consent to intercourse; and

(b) the learned trial judge erred in failing to direct the jury in relation to s 24 of the Criminal Code Act 1899 (Qld) ("the Code").

[7] On 29 September 2006, after considering the parties' arguments, the Court concluded that the appeal should be allowed.  The Court then made orders allowing the appeal, quashing the conviction and requiring a new trial.  These orders were made on the footing that the reasons for allowing the appeal would be given later.  What follows are my reasons for the orders made on 29 September 2006.

The facts

[8] The trial occupied six days.  A number of witnesses gave evidence.  The facts relevant to the issues raised on appeal may, however, be summarised quite briefly.

[9] It was common ground at the trial that, in the early morning of 3 May 2004, the appellant had sexual intercourse with the complainant at his house.

[10]  It was also common ground that the appellant and the complainant had been part of a group of people who had been fishing and drinking during the previous evening.  The complainant conceded that she consumed a large amount of alcohol during the course of the evening.  At the end of the evening, she got into the appellant's vehicle.  At this point, the accounts diverge. 

[11]  The complainant's evidence was that she remembered sitting fully clothed in the appellant's car.  She then blacked out, and her next recollection was waking up naked in the appellant's bedroom with the appellant on top of her having sexual intercourse.

[12]  The appellant's evidence was that the complainant had made sexual advances to him before and after they got into the car.  When they got to his house, she invited him to join her in the shower where they commenced having sex which concluded in his bed.  There was evidence from two other witnesses that they saw the complainant walk up the front stairs of the appellant's house.

The trial judge's directions to the jury

[13]  The appellant's counsel at trial invited the trial judge to direct the jury that they should acquit if they were not satisfied that the appellant did not honestly and reasonably, albeit mistakenly, believe that the complainant was consenting to intercourse.  The trial judge declined to give such a direction on the footing that, having regard to the evidence in the case, there was no evidentiary basis for it.

[14]  The jury were left to determine the question of the appellant's guilt on the footing that the Crown case against the appellant was that the appellant raped the complainant while she was asleep, not that she was conscious but so far gone in drink that she did not have the cognitive capacity to consent to intercourse.  His Honour said:

"In this case the complainant says that she had no knowledge of what the accused did to her before she woke up to find him on top of her having sexual intercourse with her.  It is not a case of her saying she was aware at the time of what was going on but she now cannot remember.  She says that she has no knowledge of what the accused was doing because she had blacked out.

If you are satisfied beyond reasonable doubt that the complainant had blacked out and only became aware that she was engaged in an act of sexual intercourse when she woke up to find the accused on top of her having intercourse with her then the complainant has not consented to the act of intercourse and the accused would be guilty of raping her.  So, in this case, before you can convict the accused you must be satisfied beyond a reasonable doubt that the complainant is truthful and accurate when she says she was blacked out and it was only when she woke up that she was aware that the accused was having intercourse with her.  If you are not so satisfied then you must find the accused not guilty." (emphasis added)

[15]  Earlier, in the course of explaining the elements of the offence, the trial judge had said:

"The third element which is the issue in this trial is that for the offence of rape to have been committed the penetration must have occurred without the complainant's consent.  Our law provides that consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.  I will read that out to you again.  It is that consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

Cognitive capacity in this context just means that at the time the offence is alleged to have occurred the complainant had sufficient understanding to know what was occurring in order to be able to give consent to it.  If a complainant is unconscious, blacked out, asleep, or so affected by alcohol or drugs that she does not know what is occurring when the act of intercourse takes place then the complainant does not have the cognitive capacity to consent to intercourse."

[16]  The jury sought a further instruction in relation to impairment of cognitive capacity by alcohol.  In response to the jury's request, the trial judge said:

"Our law, that is a section of our Criminal Code, in relation to consent provides that consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.  Cognitive capacity in that context just means that at the time the offence is alleged to have occurred, the complainant had sufficient understanding to know what was occurring in order to be able to give consent to it.

I will repeat that, cognitive capacity in this context just means that at the time the offence is alleged to have occurred, the complainant had sufficient understanding to know what was occurring in order to be able to give consent to it.

If a complainant is unconscious, blacked out, asleep, or so affected by alcohol or drugs that she does not know what is occurring when the act of intercourse takes place, then the complainant does not have the cognitive capacity to consent to intercourse."

The appellant's submissions

[17]  The appellant contends that the learned trial judge should have made it clear to the jury, at the point when they sought further instruction from him as to the law, that it was no part of the Crown's case that, at the time of intercourse, the complainant was conscious but had had her cognitive capacity impaired by alcohol.  Moreover, the appellant contends, the jury should have been directed at this point that the Crown case must fail if the complainant was not unconscious when intercourse took place.  Alternatively, the appellant contends that, at the least, the jury should have been instructed that being very drunk does not necessarily destroy the cognitive capacity to consent,[2] and that a possible mistake of fact defence under s 24 of the Code should be considered by the jury if they were of the view that the complainant was conscious when intercourse took place. 

[18]  The appellant argued that these directions were necessary to ensure a fair trial because there was an evident possibility that the jury would "work out for themselves a view of the case which did not exactly represent what either party [had] said",[3] and they had not been instructed as to the law which might be applicable if the jury's view of the case was that the complainant may have been conscious but stupefied by alcohol.

Discussion 

[19]  The jury's request for a redirection supports the appellant's suggestion that the jury may have had in mind the possibility that the complainant was conscious when intercourse occurred but so affected by alcohol as to suggest that she was incapable of deciding whether to consent or not, or to remember what she did while so affected.  Even if there had not been a request for redirections, the evidence was such as to point to a real possibility that this view was held by some of the jurors.

[20]  In my respectful opinion, the jury's request signalled that there was a real possibility that the jury, or some of its members, was minded to come to the view that the complainant was very drunk, but conscious, when intercourse occurred.  That the jury might have been so minded was possible because two witnesses had said that the complainant walked into the appellant's house when, on her version, she had "blacked out".  Furthermore, the appellant had been cross-examined on the basis that he had engaged in sexual intercourse with the complainant while she was conscious but stupefied.  In these circumstances, and not withstanding his earlier directions, it was incumbent on the trial judge to make clear the distinction:

"between cases where the intoxication is so gross that the complainant is unable to consent and those cases where the complainant is not so severely intoxicated and she consents to sexual intercourse either because her inhibitions are reduced or for any other reason".[4]

[21]  Moreover, if the jury were to conclude that the complainant was conscious, but so stupefied so as to be incapable of consenting to intercourse, there was room, in such a scenario, for the possibility of an honest and reasonable mistake on the appellant's part that the complainant was consenting to intercourse.[5]  In this respect, the appellant submits that the case is relevantly indistinguishable from R v Soloman.[6]

[22]  Counsel for the respondent argued that R v Soloman is distinguishable from the present case.  In R v Soloman, the accused said that the complainant was a willing participant in sexual intercourse, and the complainant said that she was asleep when intercourse occurred.  The jury were instructed:[7] 

"You may convict the defendant only if you are satisfied beyond reasonable doubt that the defendant penetrated the complainant with his penis when the complainant was asleep, and that none of those particulars of sexual activity, which was the willing and active participation described by the defendant, took place."

[23]  In upholding the appeal by the accused, Jerrard JA, with whom White and Philippides JJ agreed, said:[8]

"Mr Rafter [for Mr Soloman] conceded that he could not identify any specific disadvantage to Mr Soloman from those directions. They effectively directed the jurors that if they had any doubt about whether any of the acts by S in the bed, described by Mr Soloman, had happened (and on which Mr Soloman would rely for a defence of honest and reasonable mistake), then the jury were obliged to acquit.

But there is still a problem with those directions. They did not apply the law, which required the jurors to consider whether the prosecution had excluded the possibility of an honest and reasonable, but mistaken, belief that S was consenting. Mr Rafter referred the Court to the statement by McHugh J in Stevens v R (2005) 80 ALRJ 911 ([2005] HCA 65; B20 of 2005, 21 October 2005) at [29], where His Honour wrote that a jury is entitled to refuse to accept the cases of the parties and to 'work out for themselves a view of the case which did not exactly represent what either party said', referring to the unanimous judgment in Williams v Smith (1960) 103 CLR 539 at 545. On the assumption the jurors might have favoured some intermediate version of events – as it was open to them to do - the directions that were given (being limited to the evidence given) could not assist the jury on the issue of mistake, in the way that directions actually in the terms of s 24 would have.

Apart from that potentially crucial omission, there was a curious risk for Mr Soloman posed by the directions that were given, namely that the jurors were simply too surprised at the extent to which the law favoured Mr Soloman to apply it as directed. I add that this case differs from each of R v CV [2004] QCA 411 (CA No 182 of 2004, 5 November 2004) and R v Cutts [2005] QCA 306 (CA 97 of 2005, 23 August 2005), in that in this matter counsel did raise s 24 and a possible defence of mistake, before the judge directed the jury. The directions the judge gave were obviously intended to deal with that possible defence, in a way thought favourable to Mr Soloman or which did not disadvantage him, and the judge wanted to avoid complexity in the direction. But the terms of s 24 are an important part of our criminal law, upon which Mr Soloman was entitled to rely and to have the jury accurately directed."

[24]  White J agreed with Jerrard JA, and said:[9]

"It is particularly important, as his Honour has emphasised, that a jury be fully equipped by appropriate and correct directions to return a verdict according to law. The very divergent evidence of the parties here might well have caused the jury to moderate both versions of what happened. If that were the case, and it was a real possibility, then a jury needed to be directed about s 24 irrespective of whether the direction given might be said to favour the appellant."

[25]  Counsel for the respondent in the present case argued that the directions given in R v Soloman allowed for a finding of fact which was based in part on the appellant's account of the complainant's sexual response to him.  Counsel for the respondent said that the crucial difference between the facts of R v Soloman and the facts of this case is that, in R v Soloman, the appellant gave evidence that he believed that the complainant was consenting to intercourse because she was responsive to him while they were in bed before intercourse occurred.  But, in this case, even if the appellant did not say, in clear terms, that he believed the complainant was consenting to intercourse, his evidence was of behaviour on the part of the complainant consistent both with consent on her part and with stupefied acquiescence.  In this case, the jury's request for redirection signalled the real possibility that, notwithstanding the judge's directions, the issue of the complainant's cognitive capacity was important to the jury on a basis different from the possibility that she was unconscious when penetration occurred. 

[26]  At that point, the trial judge did not repeat his earlier direction as to the narrow basis on which the Crown's case was put.  It is correct, as a general rule, to proceed on the basis that the jury will faithfully apply the law as explained by the trial judge.[10]  In this case, however, there was reason to think that the jury were not minded to accept that the two scenarios put to them by the trial judge exhausted the available views of the evidence.  Further, as was emphasised in R v Soloman, the determination of the facts of the case is a matter for the jury.  There was, in this case, reason to think that the jury were minded to come to a view of the facts which required more comprehensive direction in relation to the law applicable to the facts as the jury might find them to be.  To the extent that the jury were disposed to entertain the view that the complainant was conscious when intercourse occurred, the appellant was entitled to a verdict which reflected the jury's consideration of the possibility that the complainant was very drunk, but not stupefied, and the possibility that he had honestly and reasonably mistaken stupefied acquiescence for consent.  Especially is this so in the light of the evidence of what had allegedly gone on between them earlier in the evening.

[27]  It follows that, in my respectful opinion, the trial judge's directions to the jury were not sufficient to safeguard the appellant's entitlement to have the jury instructed fully on the law applicable to the facts of the case as the jury might find those facts.[11]  The appellant was entitled to have the jury fully instructed in relation to the issue of consent, and to have the jury consider the possibility of a defence under s 24 of the Code.

[28]  This Court is not in a position to conclude that no substantial miscarriage of justice has occurred and to sustain the conviction on that footing.[12]

Conclusion

[29]  For these reasons, I was of the opinion that the appeal should be allowed, the conviction quashed, and there should be an order for a new trial.

[30]  JONES J:  I have read the reasons prepared by Keane JA and I agree with them.