SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P: I agree with Ann Lyons J's reasons for dismissing this appeal against conviction.

2. MUIR JA: I agree that the appeal should be dismissed for the reasons given by Ann Lyons J. 

3. ANN LYONS J: The appellant seeks leave to appeal against his conviction for rape and sexual assault.  He was found guilty after a two-day trial in the Brisbane District Court.  The two count indictment contained, as count 1, a charge of sexual assault on 29 November 2010 and, as count 2, a charge of rape on the same day.  He was sentenced on 25 October 2011 to imprisonment for two years in relation to the sexual assault and a concurrent sentence of eight years imprisonment in relation to the rape. 

4. At the hearing of the appeal leave was sought to amend the grounds of appeal to a single ground that he was denied a fair trial because the learned trial judge erred in not directing the jury in terms of the excuse of mistake of fact in s 24 of the Criminal Code 1899 (Qld) (“the Criminal Code”).

The circumstances of the offence

5. The complainant was 24 years of age and a university student at the time of the offences. On the evening of Sunday 29 November 2010 she had been doing promotional work at the Fox Hotel at South Brisbane.  She states that when she finished work that evening she commenced drinking with her friends and drank a lot of alcohol.  She admits she drank too much and that she had not had anything to eat that evening.

6. The complainant’s evidence was that around 11.30 pm or 12.00 am she went with some friends, in a cab, to a unit at New Farm but she was drunk and felt like she was going to be sick. She decided to leave and went looking for a cab. She caught a cab at the Waterloo Hotel which was, she said, about a kilometre or half a kilometre from the unit.  She stated that she remembered getting to the Waterloo Hotel and being put in a cab.  She remembered giving the driver the street name and the suburb she lived in.  Her practice was not to give the house number until they were in the street.  She stated that shortly after she got into the cab she fell asleep because she was drunk.  She remembered, however, being woken up a short time later by the driver asking if he needed to turn left or right at the top of Montpelier Road at Bowen Hills.  She stated she gave him directions to turn right.

7. After giving those directions, the complainant’s evidence was that she did not remember anything until waking up and being raped. She stated that she was lying down in the back of the car. The car had stopped. There were no lights on. She could not see any street lights and she was on her back in the back seat. She stated that her head was on the driver’s side of the back seat and her feet were on the passenger side. She stated that the passenger side back door was open and that the driver was on top of her:

“Well, can you tell the court what was happening then?-- His - his penis was inside my vagina.

Now, was any other part of his body touching you?-- Yes. I don't recall it as specifically as I do the one I just said.

Okay. Now, what happened then?-- I just froze because I – I remember immediately thinking that I didn't know where I was and that the car could be parked anywhere and I didn't know how far I was from being able to run to someone for help, so.

Was anything said?-- No. I didn't do anything and then he - thank you - then I could feel him pulling my underwear back up and so I assumed he still thought I was unconscious.

…

Okay. I was still pretending to be unconscious, but I'd woken up, you know, a few seconds before.

Okay?-- But yeah, I didn't scream or push him off or anything like that, just froze.”^[1]

8. The complainant indicated in her evidence that her eyes were closed during the whole episode of intercourse and that, after she felt him pulling her underpants up, she remembered him trying to wake her up. She stated that he shook her and that she started making it obvious that she was awake. He then started to tell her that her bankcard had been declined. She stated that she did not remember even giving it to him and that, although he told her the bankcard had been declined, she knew she had money in the account.

9. The complainant stated that, whilst the driver had in fact taken her to her street, she was not in front of her house. Rather, they were a few houses away from where she lived. She stated that she sat up and realised where she was and that she wanted to get out of the situation and run home. When she was told that the bankcard had been declined she said she would go inside and get some money. The driver said “No. Don’t go inside the house and get cash. Just give me your phone number”.^[2]  She gave him a fake phone number and, after he drove away, she ran inside her house.  She woke her brother, who called the police.

10. The appellant did not participate in a record of interview.

The trial

11. The appellant did not give evidence at trial.

12. Pursuant to s 644 of the Criminal Code, the appellant made the following admissions at trial:

“1.That between 1.28am and 2.12am on the 29^th November 2010, Gurpreet SINGH operated a Yellow Cab number 997, (Qld Reg’n:T49775)

2. That on the 29^th November 2010, Gurpreet SINGH had sexual intercourse with [the complainant]

3. That in the course of sexual intercourse Gurpreet SINGH ejaculated in the vagina of [the complainant].”^[3]

13. The journey in the taxicab had been recorded on video. That recording was an exhibit in the trial. The video footage consisted of an image being captured every ten seconds. I agree with the observations of Counsel for the appellant that only ten per cent of what occurred in the cab is in fact captured on video and accordingly 90 per cent of what occurred was not recorded.  In my view the chronology of the events, as seen from the taxi security camera system, prepared by Counsel for the respondent sets out the relevant observable facts as follows:

14. The complainant gave evidence that she showed no sexual interest in the driver whatsoever and did not consent to having sex with him. It was never put to the complainant by defence counsel that she had shown a sexual interest in the appellant.

15. It was suggested to the complainant at trial that she had gotten out of the cab before the intercourse occurred and then she had laid back down on the back seat of the cab. She stated that she could not remember that. She stated she was “unconscious” because she was highly intoxicated. It was not put to the complainant at any stage by defence Counsel that she agreed to have sex with the defendant in lieu of the payment after she was told her card had been declined. It was not put to the complainant at any stage by defence Counsel that there was any touching or cuddling or any exchange of actions or gestures of any sort whilst she was outside the cab which the appellant could have understood as consent to sex.

16. The question in this appeal is whether there was sufficient evidence in the trial for the excuse of mistake of fact to have been raised. There is no doubt that s 24 provides an excuse as opposed to a defence and that the prosecution must negative mistake of fact beyond a reasonable doubt once the evidential onus has been discharged by a defendant.

17. The real issue in this case is whether the appellant satisfied the evidential onus on him at trial such that s 24 should have been considered by the jury and whether the appellant was denied a fair trial when the trial judge determined that the evidential onus had not been satisfied.

Section 24 of the Criminal Code

18. Section 24 provides as follows:

“24 Mistake of fact

(1)A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

(2)The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

19. At trial the question of whether the excuse of mistake of fact had in fact been raised on the evidence was the subject of argument before the trial judge. After considering his position defence Counsel agreed there was no evidence to leave s 24 open to the jury. The following exchange occurred:

“HIS HONOUR … as I understand it, the Crown case - well, given that there are an - admissions, the issue for the second count, the rape, is whether there was consent and the primary position seems to be that the - from the Crown, that the complainant was not awake and so there can be no question about it, she didn't consent; and then is it your alternative ground or position that, if the jury considers that she was active in some way, they would not be satisfied that she had the cognitive capacity to give a real consent?

MS RANKINE: The - well, yes, that's the position of the Crown. I – I am a little surprised that the defendant isn't giving evidence. I had anticipated he would. I just need to have a think as to whether mistake does arise now. I - on the Crown case, whilst she is intoxicated-----

HIS HONOUR: Mmm.

MS RANKINE: -----that, of itself, in my submission, wouldn't give rise to a mistake.

HIS HONOUR: No.

MS RANKINE: Her evidence is all that-----

HIS HONOUR: Well, let's see whether it's in issue. Do you say that mistake should be left?

MR SIMPSON: I've thought long and hard about this. I'm not sure it's actually open.

HIS HONOUR: No, I don't see how it is.

MR SIMPSON: No. There's no evidence, no record of interview by him. There's no - I didn't put any suggestion to her that she led him on in some way.

HIS HONOUR: No.

MR SIMPSON: That sort of thing. The best the jury could do is they could say - they could look at her actions and I pointed out that she was standing up outside the taxi.

…

MR SIMPSON: The best I was going to put the - I think the Crown - or the case gets is that - is that the jury should have explained to them perhaps that just because a person is drunk, whatever that means, doesn't mean they couldn't consent as referring to the case of SAX [2006] QCA 397. It's open for a jury to think that, whilst a person may be very drunk, there can be an acquiescence to consent, you know, and it's those things they have to make an assessment of based on the entire evidence.

HIS HONOUR: Mmm.

MR SIMPSON: Again it's - like, like your Honour put it, you might be so drunk that you black out or you don't remember things, but you can still be able to form a consent at that time; and they have to be satisfied that she was not able to form that consent, or that really, on the Crown case, there's nothing that I've raised which I believe opened to what my client was thinking at the time.

HIS HONOUR: No.

MR SIMPSON: I don't think a mistake needs to be left to them in the circumstances.

HIS HONOUR: I don't know how I could sensibly leave it.

MR SIMPSON: No. I've - yeah. There's not evidence there.

HIS HONOUR: I'd have to make up stories to give it some bones and that's not-----

MR SIMPSON: Yeah. It really would amount to speculation on their part as to what he was thinking.

HIS HONOUR: Yes.

MR SIMPSON: I think leave it alone, make it simply that issue, either she's asleep, she can't consent, or she's very drunk without the ability to form consent, but they need to be satisfied that, you know, they can opine or take into account that people can be very drunk and yet still able to form consent and the law recognises that.

HIS HONOUR: Yes, all right.”^[4]

20. The Crown case was therefore put on two bases: firstly, that the complainant was asleep or unconscious and did not consent; and secondly, in the alternative, she did not have the cognitive capacity to consent. The trial judge summed up the defence argument in relation to count 1 as follows:

“So as to count 1 the charge of indecent assault Mr Simpson submitted you would look at what the driver does on the recording and question, whether he is touching her to wake her up. Notice that he gets the card and argued that you would not be satisfied that this was an assault and you would not be satisfied that it was indecent, and in those circumstances you would acquit.”^[5]

21. In relation to count 2, the trial judge summed up the defence argument as follows:

“With respect to count 2, Mr Simpson argued that if you study the video and notice that the complainant was out of the car at one stage and then gets back into it you would infer that she was awake and that what happened after that is consistent with consensual sexual activity, so the argument was you won't be satisfied beyond reasonable doubt that the prosecution has proved a lack of consent.”^[6]

Should s 24 have been left to the jury?

22. It is clear that once the evidential onus has been satisfied the prosecution must negative mistake of fact beyond reasonable doubt. In Loveday v Ayre; Ex parte Ayre,^[7] Philp J held;

“Whatever may be the position at common law, a mistake is not a defence in Queensland – it is not a matter which the defendant must prove on the balance of probabilities. Section 24 provides that a person is “not criminally responsible” if he acts under an honest and reasonable mistake of fact; the onus then is on the prosecutor to satisfy the court beyond reasonable doubt of the non-existence of the operative mistake. Of course the section does not operate unless there be some evidence, looking at the case as a whole, of operative mistake.”

23. Accordingly there must be some evidence looking at the case as a whole of mistake of fact. It is also clear that it is sufficient for the person charged to introduce evidence by cross-examination of a prosecution witness, or by direct evidence, from which it can reasonably be inferred that an honest and reasonable belief in an appropriate state of things exists. There is no doubt that the decisions in Sancoff v Holford, ex parte Holford^[8] (“Sancoff”) and Larson v G J Coles & Co Ltd; Ex parte G J Coles & Co Ltd^[9] (“Larsen”) establish that the relevant state of mind of the person in question can be derived from the case as a whole and that specific evidence of that state of mind is not called for.  In Sancoff Williams J held:

“To raise the defence it is merely necessary for the person charged to introduce evidence whether by cross examination of the prosecution witnesses or by direct evidence, from which it could be reasonably inferred that an honest and reasonable belief in an appropriate state of things exists, and the onus then passes to the prosecution to negative the existence of such a belief.”^[10] (my emphasis)

24. The question in this case therefore is whether there was any evidence before the Court from which it could be ‘reasonably inferred’ that the issue of mistake of fact arose.

25. Reliance is also placed on the decision of Jerrard JA in R v SAX^[11] to essentially argue that the question of mistake of fact arose in this case:

“[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.”

26. It is argued that, in the present case, the appellant mistakenly but honestly and reasonably believed actual consent was given with cognition. It is argued by the appellant that the evidence supporting the fact that the complainant had cognitive capacity includes the following:

1. the complainant was initially interacting with Mr Singh including chatting and smiling;

2. when she first fell asleep the driver was readily able to wake her and ask her whether to turn left or right;

3. the complainant interacted by smiling and saying, at one stage, “I’m sorry but I’ve had too much to drink”;

4. at some stage the complainant gives the driver her bankcard;

5. when awoken when the driver stopped in her street she appears to move across the back seat and sits or stands unaided at the kerbside shortly before the act of sexual intercourse; and

6. when she complained to her brother he did not indicate that she was paralytic drunk.

27. The evidence which is relied on by the appellant to argue he may have reasonably believed that the complainant consented includes the following:

1. the appellant is well aware of the existence and operation of the security camera;

2. if he was committing an offence he must have known he would have been apprehended given the video footage;

3. the intercourse engaged in is not stealthy but robust;

4. the driver held the bankcard to the camera, evidencing his knowledge of the camera and providing a means by which the identity of the complainant could be established; and

5. after the intercourse there was a discussion about her bankcard not working and a request for her phone number.

28. In terms of the appellant’s state of mind therefore it is argued not only that he honestly believed the complainant was consenting, but that his belief was reasonable because she appeared to acquiesce as she laid across the back seat after first leaving the taxi. At a further point in time she appeared to raise herself up momentarily without assistance. It is also argued that, during the intercourse, she raised her leg to facilitate the intercourse. It is also submitted that during intercourse the complainant woke up but did not protest. It is therefore argued that the whole of that evidence indicates that there is an interpretation on the security footage most favourable to the appellant that he had an honest and reasonable belief that the complainant was consenting.

29. I accept that defence Counsel’s view that mistake of fact was not open on the evidence did not relieve the learned trial judge from his duty to put to the jury matters raised on the evidence. That proposition was confirmed by the President in R v Elomari^[12] as follows;

“[3]It is true that the case was not litigated as one of mistake as to consent but I consider counsel’s concession that there was no evidence that of mistake was wrongly made. Defence counsel’s position did not relieve the Judge from his duty to put to the jury any matters raised on the evidence upon which they might find for the appellant, even where this was inconsistent with the conduct of the defence case: Pemble v The Queen.”

30. The question as to whether the evidential onus is satisfied obviously depends on the circumstances of each case. In this regard I note that the three decisions referred to by the respondent in relation to the issue of mistake of fact are R v Elomari;^[13] R v SAX;^[14] and R v Soloman.^[15]  I also note that in each of those cases the factual backgrounds indicate that the defendants and the complainants were generally known to each other and that there was some evidence of consensual interaction between the parties prior to the complainant indicating she did not consent to intercourse.  Significantly there were two versions of events as the complainant and defendant both gave evidence as to what had occurred.

31. The excuse of mistake of fact was discussed in detail in R v Elomari.^[16]  That case involved a complainant and an appellant who were known to each other.  It also involved a sequence of events where some of the sexual interactions were consensual, including kissing and touching intimate parts of her body.  At some point, however, the complainant told the appellant to stop.  It was also clear in that case that the complainant and the appellant gave different versions as to what occurred.  In the dissenting decision by the President, her Honour held as follows:

“[7]Judges routinely tell juries that they may accept all, part, or none of the evidence of witnesses. In this case the complainant and the appellant gave very different versions as to what occurred. Had the question of honest and reasonable mistake as to consent been left for the jury’s consideration, it is possible the jury may have found that the truth lay somewhere between the two competing versions: see McHugh J’s observations in Stevens v The Queen, cited with approval in R v Soloman and R v SAX. The jury may have considered that the prosecution had not established beyond reasonable doubt that the appellant did not honestly and reasonably believe the complainant was consenting.

[8]The judge’s omission to direct the jury as to s 24 has deprived the appellant of a real chance of an acquittal and has resulted in a miscarriage of justice. For those reasons I would allow the appeal, set aside the conviction and order a retrial.”

32. In R v SAX,^[17] the evidence similarly indicated that the defendant and the complainant had been part of a group that had been fishing and drinking together and that the complainant got into the defendant’s car.  There was also independent evidence from two witnesses that the complainant walked up the front steps of the defendant’s house.  Both the complainant and the defendant gave their version of events with the defendant stating that the complainant made sexual advances towards him and the complainant saying that she was stupefied by alcohol and unable to consent.

33. In R v Solomon,^[18] the defendant was the coach of a softball team and the complainant was a member of the team.  The defendant went to the complainant’s home with other members of the team where it was determined he would stay the night as he lived some distance away.  Once again the complainant and the defendant’s views of what happened were very different.

34. In the present case the appellant did not give a version of events at any stage. The appellant was also completely unknown to the complainant. The complainant had a short conversation with the appellant, which included telling him she was very, very drunk.  The complainant occupied the cab for 44 minutes in total.

35. The evidence at trial about those 44 minutes consisted solely of the complainant’s evidence and some five minutes of video footage. The complainant’s evidence was that she showed no sexual interest in the appellant at any stage. There is nothing in the five minutes of actual video footage to show any evidence of her having any interest in him.

36. The video evidence in fact disclosed that there was a sustained period between 1.53.15 am and 1.57.24 am where the appellant is seen touching her upper torso and appears to be touching her breasts. He is also seen to touch her legs and arms. That video footage also shows that she is clearly unresponsive to his touch and has her eyes closed at the beginning and the end of that period. She did not react in any way despite this sustained touching which, on the basis of the video footage, could have lasted a number of minutes. The footage indicates her actions were similar to those of a ‘rag doll’. After the expiration of more than four minutes she sits up. That is the extent of her response to those actions on the basis of the video evidence.

37. In my view there is no evidence on the video footage of any action by her, therefore, which would give rise to a ‘reasonable inference’ at that point in time that she was either consenting or was capable of consenting.

38. Did a reasonable inference of mistake of fact arise on the evidence after that point in time?

39. The video footage possibly shows both the complainant and the appellant at the rear door on the passenger side and that the complainant may have stood up or even exited the cab. The footage is unclear but at its highest she may be outside the cab at some point. The footage then shows the appellant with the complainant’s bankcard and the complainant seated at the rear passenger door. There is footage of the appellant showing the bankcard to the camera and possibly trying to swipe it whilst in the front driver’s seat.

40. After that footage the appellant is shown to return to the back rear passenger door with the card in his hand. Almost straight away he proceeds to lie the complainant down and have intercourse with her. Objectively there is nothing in that evidence that shows she consented or was capable of consent. She does not lie down voluntarily. Rather, she is obviously propelled backwards onto the seat by the force of the appellant’s body. At one stage she tries to sit up.

41. Accordingly on that video footage there is a period of about two minutes, at the most, where there might be an inference that both the appellant and the complainant are outside the car.

42. Apart from that incomplete video footage the only other evidence as to what occurred was the evidence given by the complainant. In cross examination she denied exiting the cab before intercourse. The complainant also made it clear that she could not actually remember giving her bankcard to the appellant or indeed anything at all until he was on top of her with his penis inside her.

43. The question was never put to the complainant by defence counsel that she agreed to have sex with the appellant as an alternative to payment for the cab fare or that she was even asked to do so or that she did or said anything that might have led him to think that she would consent to sex with him.

44. In my view there was no evidence before the Court which could give rise to a reasonable inference that there was a mistake of fact on the appellant’s part in believing that the complainant had consented to sex.

45. I agree that to have been so satisfied in this case the judge would have had to speculate about what happened in the absence of a version of events by the appellant.

46. In my view the appeal should be dismissed.