R v Kalisa[2024] QCA 198

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the outline of the relevant evidence by Ryan J.

Appeal Point

2. [2]
   There was only one ground of appeal, that a miscarriage of justice was occasioned by the failure of the trial judge to direct the jury in terms of s 24 of the Criminal Code (Qld).
3. [3]
   It may be accepted, as the appellant’s counsel submitted on appeal, that even though defence counsel disclaimed reliance on s 24, that did not relieve the trial judge from his duty to put to the jury any defence fairly raised on the evidence.^[1]
4. [4]
   It is for the Crown to exclude a defence under s 24.  When the jury should be instructed to consider whether or not the Crown has done so, depends upon the evidence in the case.  The question must be asked whether the evidence raises for the jury’s consideration the issue of whether, even though the complainant did not consent, there was a possibility that the defendant had an honest, reasonable but mistaken belief that the complainant had consented.^[2]  It does not matter whether that evidence comes from the complainant, the defendant, from another source, or is open to the jury from a combination of sources.  As recognised by Ryan J, the jury might accept and reject various parts of the evidence to arrive at factual findings not consistent with the entirety of any one witness’s evidence.^[3]
5. [5]
   There will be some cases where, on the evidence, there could be no room for mistake as to whether or not there was consent.  There will be others where the evidence does not support the idea that any mistake was reasonable.^[4]
6. [6]
   In Makary^[5] Sofronoff P sought to draw a distinction between cases where a defendant gives evidence and cases where a defendant does not.  The same sort of distinction was drawn by Williams JA in R v Cutts.^[6]  I do not find this distinction helpful.  I think it tends to complicate what ought to be a simple and uniform enquiry across cases which will present any number of factual circumstances and evidential permutations.  Like Ryan J, I prefer the approach of McMurdo JA in Makary.
7. [7]
   In SAX Jerrard JA commented that evidence raising s 24 for the consideration of the jury will often arise in cases where the complainant is very drunk – [1] and [2].  I accept that, but again, there is no separate rule for such cases.
8. [8]
   Here, it seems to me that for the reasons outlined by Ryan J, there was sufficient evidence in the case that the jury ought to have been instructed that they should consider whether or not the Crown had excluded the possibility that the appellant had an honest, reasonable but mistaken belief that the complainant had consented to sexual intercourse.  Failure to leave an available defence to the jury amounted to a miscarriage of justice which could not be cured by resort to the proviso.^[7]  The result is, as ordered by the Court at the hearing of this appeal, that there must be a retrial.
9. [9]
   FLANAGAN JA:  I agree with Dalton JA.
10. [10]
    RYAN J:  On 29 August 2024, this Court made the following orders in the appellant’s appeal against his conviction for rape:

    1. The appeal is allowed.
    2. The conviction is set aside.
    3. A new trial is ordered.
11. [11]
    These are my reasons for joining in those orders.

Overview

12. [12]
    The appellant was convicted after a trial of one count of rape.  Sexual intercourse was admitted.  The element in issue was whether sexual intercourse occurred without the complainant’s consent.
13. [13]
    The Crown Prosecutor invited the jury to accept the complainant’s evidence, which the prosecutor asserted conveyed that, at the time of sexual intercourse she was drunk, in and out of consciousness, pinned down, and forcibly raped, while she did what she could to fight off the appellant.
14. [14]
    Counsel for the appellant invited the jury to accept the appellant’s version of their sexual intercourse (or at least to find that it gave rise to a reasonable doubt about his guilt) – which was, essentially, that the complainant had welcomed intimate contact between them and consented to sexual intercourse.
15. [15]
    The case was put to the jury by the learned trial judge as one based upon competing versions of events, which reflected the way in which the case had been presented to the jury by counsel.
16. [16]
    In my view, notwithstanding the approach taken by counsel, the case was not as simple as one involving competing, incompatible versions of events, where the only question for the jury was whether they were satisfied, beyond reasonable doubt, that the complainant did not consent to sexual intercourse.  In my view, the evidence of the complainant, taken with the evidence of the appellant, provided a reasonable foundation for a defence under section 24 of the Criminal Code that the appellant honestly and reasonably but mistakenly believed that the complainant was consenting to sexual intercourse.  The trial judge did not direct the jury about that defence.  Indeed, counsel for the appellant agreed with the trial judge that it was not raised.  But in my view, the defence was open on the evidence and ought to have been left for the jury’s consideration.  There was therefore a miscarriage of justice, requiring the orders made at the hearing of the appeal.

Evidence at trial

17. [17]
    At the time of the commission of the alleged offence the appellant was about 18 years old (there was some uncertainty about his exact date of birth).  The complainant was 16.  The alleged rape occurred in a bedroom of a unit in Brisbane during a birthday party for a young woman, BG.
18. [18]
    The appellant said he met the complainant before the party through a youth group.  The complainant was not sure if she saw the appellant at the youth group and could not remember interacting with him before the night of the party.
19. [19]
    The young people at the party were drinking alcohol, including spirits.  The complainant became intoxicated and “passed out”.  One of her friends, RU, thought it best to take her to a bedroom in the unit.  RU tucked the complainant in bed, stayed with her for a little while, then left the bedroom and the unit for a while.  RU returned to the unit after the alleged rape had occurred.
20. [20]
    DU, another of the complainant’s friends at the party, did not want the complainant in the bedroom by herself, so she went into the bedroom with her.  DU sat with the complainant, then the complainant started vomiting.  DU cleaned it up.
21. [21]
    At about 11 pm, BG suffered seizures.  At about midnight, she was taken to hospital, accompanied by DU and another party guest, TM.  The alleged rape occurred while BG, DU and TM were at the hospital.
22. [22]
    According to DU, when she got back from the hospital, the complainant was in a bedroom with the appellant and one other person, a tall woman.  The appellant was on his phone on one side of the room.  The tall woman was on her phone also.  The complainant was “kinda sleeping” on a single bed and the sheets were messy.
23. [23]
    The tall woman left the bedroom (and perhaps another male entered and then left).  The complainant, the appellant and DU were in the bedroom.  The complainant snapped DU on Snapchat and told DU that she wanted the appellant to leave and that she wanted to tell DU something.
24. [24]
    DU told the appellant to leave, and he did so.  Then the complainant told DU that the appellant “raped her and stuff” and showed DU blood on the bedsheet.  (The complainant had been a virgin before the alleged rape.)  She told DU that it hurt “down here”.  She said she had passed out.  When she gained consciousness, a guy in a white shirt (not the appellant) was “kissing on her and stuff”.  She did not want to be in the room.  She went into another room and the appellant raped her.  She said she was passed out when “it happened” with the appellant.  She said he had her pinned down.  DU told TM.
25. [25]
    TM returned to the party at about 2.30 or 3 am.  She said she was told to check on the complainant.  She found the complainant in bed.  The complainant looked scared and upset.  TM asked her what was wrong.  The complainant said that she “kept waking up, she would see [the appellant] on top of her with no pants on”.  The complainant told TM that she tried to kick the appellant off, but she was too weak.
26. [26]
    Police were called to the unit.  They spoke with the complainant and took her to hospital for a forensic examination.
27. [27]
    The complainant made statements about the alleged rape on five occasions, namely by way of: (a) a preliminary complaint to DU; (b) a preliminary complaint to TM; (c) a recorded complaint to police within hours of the alleged rape; (d) evidence taken formally under section 93A of the Evidence Act 1977; and (e) evidence, including cross-examination, taken pre-trial under section 21AK of the Evidence Act 1977.
28. [28]
    The preliminary complaint evidence of DU and TM is set out above.
29. [29]
    As to (c), police arrived at the unit at about 8.26 am.  The complainant said to one officer:

“… I was unconscious, and these two guys like … But like there’s two different rooms and these guys like sexually assaulted me … I didn’t know what was going on.  And so like, after, when he (sic) starting kicking me, and like they both like left the rooms.”

30. [30]
    She agreed with the police officer (who was clarifying what she had been told by the complainant) that she started kicking to “get them off or something”.  She said there were blood stains on the bed.  She was asked whether she remembered any or all of it and she said, “Not really”.  She said she “sort of didn’t see well [indistinct] see what was happening”.  The officer said, “So, do you think you have been penetrated?”  The complainant replied, “I think so”.  She said she had “not too much” alcohol but “still a lot”.
31. [31]
    In her formal section 93A interview, conducted on 1 July 2021, the complainant said that she wished to speak to police about being sexually assaulted by “two guys”.  She said she passed out in “my bedroom” at about 12.00 am.  The guy with a white t-shirt on came into the room and “was like kissing on the left, no on the right side of my body”.  She said a woman at the party came into the room and asked the guy what he was doing.  He ran into the closet to hide.  Later on, the complainant started “spewing”.  Then she moved to the other bedroom and “that’s when he [the appellant] started kissing me as well on the same side”.  She continued –

“And he started like taking, putting up my dress and taking off my underwear.  And then that’s when he like started to pull out his dick and put it inside me … and then after that, he left the room and I got up off the bed and then there was like blood stains on the sheets …”

32. [32]
    In response to questions from police designed to elicit more detail, the complainant said (my emphasis):

    1. The first guy was kissing “down my neck and kinda on my chest a little bit”, before her friend kicked him out of the room.
    2. She went into the second bedroom and the appellant came in and started kissing her in the same place as “the earlier guy”.  She said, “I was trying to get him off of me … but he like pinned down my hands at the same time when he was um, getting inside me and everything”.
    3. The kissing was “disgusting … sloppy and yuck”.  She agreed with the police officer that it was “kinda gross”.
    4. The appellant kept saying “shush” while his hands were on her wrists – “full on” pushing down on her wrists.
    5. He kept telling her to be quiet.
    6. He lifted up her skirt before he pinned down her hands –

“Um, like I was just um, on the bed, but I could like feel my skirt going up but … I didn’t realise it was him … So I just like, let that go ‘cause I thought … It was just like one of my friends like fixing up my dress …And then yeah, that’s when he started to lift it up and take off my um, not (sic) underwear at the same time … After that, that’s when he put um, his dick inside me.

And so I like, I was like, like I was like half there but not there at the same time ‘cause I was like passed out and everything.

…

… at first he was like going fast.  And like I was like trying to like get it out of me.  And he was like no, no.  And it’s like, and that’s when he decided to put my hands down on the pillow and put his hands on my wrist.”

7. The complainant tried to get his penis out of her and the appellant “like kept pushing [her] hand away and [told] her to be quite and it’s okay, over and over”.
8. Of her attempts to remove his penis, she said:

“I put my hand down to like, like just like grab it off …And I like, I did it for like probably ten seconds and then that’s when I like decided to give up and like try again like off me (sic).  And then that’s when one of the girls came in.  I couldn’t remember who.  And like, they like got him out of the room …”

33. [33]
    She said she had been “drinking and drinking”; felt a bit sleepy; could not walk straight enough to continue staying up; could not see straight; and passed out.  She heard people at the party discussing BG’s seizures and then “full on blacked out” in the first room.  She woke up when her friend was yelling at the first guy.
34. [34]
    She said she went into the sitting room area, had “another jig” of two spirits and went to lie down in the other bedroom.  She said she blacked out in that room also.  When she started to come to, the appellant came into the room.  She continued:

“… we were like talking for little bit.  I thought he was just coming to check up on me, but he wasn’t.  And then um, that’s when he like jumped on the bed.  And then I asked him … what are you doing.  And then um, he was like telling me to be quiet and everything and that’s when he like started to pull out (sic) my dress.”

35. [35]
    She was asked what they were chatting about.  She said, “coming into check up on me … like just asking how are you ‘cause I was pretty blacked out … I can’t quite remember what he said, but he was just asking if I was okay.  And then I said yeah.  And then I (sic) pretty sure I went back to sleep after that …”.
36. [36]
    She said the appellant then “jumped” on her; “[l]ike just not really jumped on, but like he just moved his way onto me”.  She was wearing a black dress and underwear.  She said the appellant pulled her underwear down at the same time as he pulled her dress up.  He told her to close her eyes.
37. [37]
    She agreed with the propositions put to her by the police that it was then that the appellant put his penis inside her and that she was trying to get it out with her hand until he “pinned” her hands “up”.
38. [38]
    She said she asked the appellant what he was doing, and he told her to shush.  He put her hands back onto the pillow and had intercourse with her.  She said he went “faster” for two or three minutes.
39. [39]
    She was asked what she did to try to get away from the appellant.  She said:

“I was like trying to get up and like h-, h-, all of his pressure was on me … And like he just kept putting my hands down and told me to like shush … Like his body weight was just like on me”.

40. [40]
    She thought it was then that three other girls came into the room and told him to get out.  She said she was crying when they came into the room and asked her what had happened.  She told them what she remembered.  Her recollection was that the appellant was having intercourse with her when the other girls entered the room.  She said they were screaming at the appellant; telling him get off; and she was crying and upset.
41. [41]
    She said she did not know whether the appellant ejaculated.  She did not know whether he was wearing a condom.
42. [42]
    In her pre-recorded cross-examination, the complainant agreed that it “could be right” that she was “awake” during sexual intercourse, but that her memory of what happened was affected by her alcohol consumption.  She could not recall or remember much, if any, of the detail of the appellant’s version of the lead up to their sexual intercourse; the act of intercourse or what they did afterwards, as the following questions and answers illustrate:

“Do you remember kissing Tuombe on the couch? --- No

You’re saying that didn’t happen? --- No.  I don’t know if it happened.

Sorry? --- I don’t think it happened.

You don’t think it happened.  Or you say you don’t know if it happened, or you don’t think it happened?  What was the answer you gave? --- The first answer was, like, I don’t know.

Right.  You see, what I put to you is that when you were on – you were at one point on the couch with Tuombe, and the two of you began kissing.  Do you remember that? --- No.

But you – I think you say you don’t know if that happened or not; is that right? --- Yes.

And that’s because you’d been drinking.  That’s correct? --- Yeah.

… I put to you that it was passionate kissing.  That was mouth kissing with tongues and things like that.  That’s correct, isn’t it? --- I don’t recall that happening.

…

See, what I’m putting to you is that you were on the couch with Tuombe, and the two of you went into the bedroom together.  That’s true, isn’t it? --- No.

And you were going to the bedroom to have sex with Tuombe, correct? --- No.

… the apartment was a bit quieter because all of your friends had gone to the hospital: correct? --- No, I don’t recall that.

And I put it to you that you closed the door to the room? --- No, I don’t recall.

With you and Tuombe inside, I put to you? --- No, I don’t recall.  No.

And the two of you got onto the bed? --- No.

You asked him if he had protection, didn’t you? --- No.  No.

And he said he didn’t, correct? --- No, I don’t recall.

And you said it would be okay, were the words you – or it’d be all right, you said to him, didn’t you? --- No, I don’t recall saying that.

…

… And you pulled your dress up by yourself, didn’t you? --- No.

And you took your own underpants off, didn’t you? --- No, I don’t recall.

You don’t recall doing that? --- No.

You don’t recall Tuombe taking your underpants off either, do you, truthfully; correct? --- Yes, he did so.

And I suggest you just put your underwear next to you on the bed, didn’t you? --- No, I don’t recall doing that.

And Tuombe, I put to you, had sexual intercourse with you for a relatively short time.  It didn’t go on for very long.  Is that correct? --- No, I don’t recall.

And after the sex finished, he asked you if it felt good, didn’t he? --- I don’t recall him saying that.

And you said it did.  Remember that? --- No, I don’t recall.

And do you remember going into the bathroom after the sex? --- No.

What I put to you is that Tuombe and you walked into the bathroom from the bedroom.  Do you remember that? --- No, I don’t remember that.

And before walking into the bedroom (sic), you had put your underwear on and adjusted your dress, correct? --- No, I don’t recall.

And in the bathroom, I put to you that you and Tuombe kissed again? --- No, I don’t recall.”

43. [43]
    She said that she told the appellant to get off her.  She was asked whether she was making “some noises, a bit like moaning”.  She said, “No, I don’t recall that”.
44. [44]
    It was put to the complainant that she was embarrassed when her friends came back to the party because it was obvious that she’d had a sexual “encounter” while they were away.  She said she did not recall feeling embarrassed, but she remembered that she cried.  Cross-examination continued and the complainant stated that she did not recall giving the appellant consent by way of conversation or conduct:

“Yeah.  And you went from saying you weren’t really sure what’d happened to accusing [the appellant] of having sex with you without your consent.  That’s how it happened, wasn’t it? --- No, I didn’t give him consent.

Well, I put to you that you did consent? --- No, I don’t recall giving him consent.

And you consented by asking him about protection? --- No, I don’t recall.

By taking off your own underwear? --- No, I don’t recall.

By grabbing at his crotch area.  Remember that? – No, I – I don’t recall that.

And talking to him about the sexual encounter afterwards while you’re still in the room.  That’s the case, isn’t it? --- No.”

45. [45]
    In re-examination, she was asked again whether she consented to the appellant having sexual intercourse with her and she said, “No, I didn’t consent”.
46. [46]
    The appellant’s evidence at trial was to the effect that the complainant was attracted to him and that their sexual intercourse was consensual.  He provided details of their interactions during the party.  The critical parts of his evidence were accurately set out in appellate counsel’s outline of argument as follows:

    1. He (the appellant) and the complainant were “French kissing” on the couch together.
    2. He and the complainant got up and walked to the bedroom holding hands.
    3. When they got to the room, they continued kissing and touching each other.
    4. The complainant asked if he had “protection”.  He checked his wallet and then told her he did not have protection.  She said that was fine.
    5. The complainant removed her underwear and pulled her dress up.  She placed her underwear next to the bed.  She locked the door.
    6. They proceeded to have sex.  It ended when he “finished”.
    7. The appellant asked her if she liked it; she said she did.
    8. The appellant said that, during the sex, the complainant never said no, and “[s]he didn’t do anything that I could see where she didn’t want it”.
47. [47]
    Taken as a whole, the appellant’s evidence conveyed that he and the complainant were both willing participants in intimate kissing and touching and sexual intercourse.  But the appellant’s evidence-in-chief concluded with the following question and answer (as summarised in (h) above) (my emphasis):

“All right.  At any time during the sex, did [the complainant] tell you ‘no’? --- No way.  She didn’t say nothing.  She – we was having normal con – I mean sex.  She liked it.  She – she was – she didn’t do anything that – to show, like, so I can tell that she didn’t like it or she didn’t want it.  She didn’t do anything that I could see where she didn’t want it.”

48. [48]
    In my view, this part of the appellant’s evidence in particular, especially when considered in the context of the complainant’s evidence, should have caused both counsel and the court to give serious consideration to the availability of a section 24 defence.  But instead, at the end of the appellant’s evidence, and after allowing the jury to retire, the following exchange occurred between the learned trial judge and the appellant’s counsel, disposing very briefly with the section 24 issue:

“HIS HONOUR:  All right.  [Counsel for the appellant], it doesn’t seem to me to be a case of mistake of fact.

COUNSEL:  Not at all.  No.

HIS HONOUR:  No.

COUNSEL:  I don’t press for that.  No.

HIS HONOUR:  All right.

COUNSEL:  It’s whether they can be satisfied beyond reasonable doubt or not of all of the evidence they accept.”

49. [49]
    The jury retired, after his Honour’s summing up, at 11.38 am.  A little before 12 pm, they sent a note which read, “Can we have the definition of consent written out?”
50. [50]
    His Honour declined to provide the jury with a written definition of consent, but told them, correctly, that “consent” meant “consent freely and voluntarily given by a person with the cognitive capacity to give consent”.  His Honour went on to explain that if the jury accepted the complainant’s evidence beyond reasonable doubt, then there was no evidence that she consented to sexual intercourse.  If they accepted the appellant’s opposing evidence, or it caused the jury to have a doubt about where the true position lay, then they would find the appellant not guilty.  His Honour continued (my emphasis):

“But the real issue in this case is do you accept the complainant’s evidence on (sic) how this occurred, in the context of what she said, beyond reasonable doubt.  If you do, you would convict.  If you don’t, then you would acquit.  And, as I said to you as well, just because of the nature of the evidence that was given … If an act is done or continues after consent is withdrawn – now, that is not the position on the evidence here on either the prosecution or the defence case, but the complainant did give evidence that she said on numerous occasions, ‘Stop’, ‘Don’t’, words to that effect during the event of intercourse.  There is the withdrawal, if you like, of any agreement, notwithstanding that she did not say that she agreed to anything in the first place.  No consent was given at all, but there is evidence from the complainant that she specifically said, ‘No’, because continuing with sexual intercourse after a person says ‘no’ is done, therefore, from that point of time on, without consent.”

51. [51]
    There was in fact no evidence before the jury that the complainant said “Stop” or “Don’t” during sexual intercourse.  Nor was there evidence that she specifically said “no”.  Nor was there evidence that she said something of that kind on numerous occasions.
52. [52]
    The complainant told TM in her preliminary complaint that she tried to kick the appellant off, but she was too weak.  She agreed with the police officer who turned up at the unit that she started kicking to get “them” – the “two guys – off.  In her section 93A evidence, she said that she tried to get the appellant off her.  She said something similar in cross-examination.  She said that the appellant told her to “shush” when she asked him what he was doing but she did not say that he said “shush” in response to her saying “stop”, or “don’t” or “no”.  The following exchange from her cross-examination is the highest her evidence went about her making a statement to the appellant which conveyed her lack of consent to sexual intercourse:

“And what I simply put to you – just bear with me a moment, please – that when you were having sex, you weren’t saying “No” or anything like that to him.  That’s true, isn’t it? --- Yes, I was telling him to get off of me.”

53. [53]
    No point was taken about this aspect of the re-direction by the appellant.

When is evidence sufficient to raise a section 24 defence?

54. [54]
    If evidence at trial from any source, or from a combination of sources, viewed fairly or realistically, discloses a reasonable possibility that a defendant might have had an honest and reasonable but mistaken belief that a complainant was consenting to the sexual conduct alleged, then a jury should be directed about a defence under section 24 of the Criminal Code.
55. [55]
    Evidence which provides a basis for what is sometimes called a defence of “operative mistake” may be found in the evidence of the complainant alone, or in the evidence of the defendant alone, or in the evidence viewed as a whole, or in an intermediate version of events.  By “an intermediate version of events”, I mean a version of events found as fact by the jury which is not based wholly on the evidence of the complainant or the defendant but is instead a moderated version of the testimony of each.
56. [56]
    Evidence which provides a basis for a defence of operative mistake may be found even if a defendant gives evidence which is inconsistent with such a defence.  And where the defence is raised on the evidence, it must be left to the jury, even if counsel for the defendant does not ask for it to be left, to ensure that the trial is fair.
57. [57]
    In the present case, as will emerge, I consider that evidence fairly raising a defence of operative mistake was to be found in the combination of the evidence of the complainant and the appellant.  On the appellant’s evidence alone, he had a belief that the complainant was consenting.  On the basis of a combination of the evidence of the appellant and the complainant (or on the basis of a moderated view of it) the jury might have considered it reasonably possible that his belief was honest and reasonable.
58. [58]
    The authorities upon which the appellant relied are discussed below.
59. [59]
    In R v Cutts [2005] QCA 306, the Court of Appeal had to decide whether a defence under section 24 of the Criminal Code was fairly raised on the evidence at trial.  Cutts was convicted of three counts of sexual assault and one of rape.  The jury were not directed to consider a defence under section 24.  Cutts argued on appeal that the defence should have been left.  His appeal was dismissed, by majority.
60. [60]
    The complainant was a wheelchair bound, 28-year-old woman with cerebral palsy.  Cutts was a taxi driver, whom she had never met until he drove her from a shopping centre to her home on the day of the sexual assaults and rapes.
61. [61]
    She gave evidence of his non-consensual sexual treatment of her.  He gave evidence that he was not involved in any sexual activity with her.
62. [62]
    The question on appeal was whether a section 24 defence was sufficiently raised by the complainant’s evidence, and ought to have been left to the jury, even though the defendant denied any sexual contact with her.
63. [63]
    Each of their Honours (McMurdo P, Williams and Jerrard JJA) determined that question in a similar way – that is, by searching for some evidence which fairly raised the defence, or from which the defence could be reasonably inferred; or which could legitimately give rise to the defence; or which could give rise to any reasonable possibility that the appellant had made an operative mistake.  However, their analysis of the evidence led to different conclusions when it came to counts 3 and 4.
64. [64]
    McMurdo P at [3] stated the “clear law” that a trial judge is obliged to direct the jury on any defence fairly raised on the evidence, even where it is not raised on the defence case.  For section 24 to be an issue for the jury’s consideration, there had to be some evidence of mistaken belief ([4]).  Because Cutts gave evidence that there had been no sexual contact between them, the issue was whether the complainant’s evidence disclosed any reasonable possibility that Cutts had an honest and reasonable but mistaken belief that the complainant was consenting to one or more of the sexual activities she described ([11]).
65. [65]
    At [37], Williams JA explained that it was not necessary for a jury to be directed on section 24 in every case of rape or sexual assault, as illustrated by R v Millar [2000] 1 Qd R 437.  In Millar, McPherson JA (with whom the President and Ambrose J agreed) said that, for an appellant to succeed in an argument that a miscarriage of justice occurred because a trial judge failed to direct the jury in terms of section 24(1), the appellant had to show that there was material on which the jury could legitimately have entertained a reasonable doubt about that issue.
66. [66]
    At [43], Williams JA said that an appellant’s evidence that the complainant was consenting to sexual activity was evidence that he believed the complainant to be consenting and it was then for the jury to consider whether such a belief was honestly held and reasonable:

“Where an accused person gives evidence admitting the sexual activity but contending that it was with the complainant’s consent there is evidence that he believed the complainant to be consenting.  If the jury rejects the correctness of the accused’s evidence and accepts the evidence of the complainant that she was not consenting, that does not mean that the accused did not hold the belief to which he swore.  In those circumstances the jury should go on and consider whether or not the belief was honestly and reasonably held, unless in the circumstances there is some good reason for not doing so.  In a case such as that the rejection of the accused’s evidence to the effect that the complainant was consenting does not necessarily amount to a rejection of the evidence that he held such a belief …”

67. [67]
    In Cutts itself, his Honour held that the jury’s preference for the complainant’s evidence over the appellant’s evidence (as reflected in the guilty verdicts) did not leave for consideration any evidence from the appellant as to his belief that the complainant was consenting because he denied that any sexual activity occurred.  It followed that the jury did not have to go on to consider whether such a belief was honestly and reasonably held.
68. [68]
    Jerrard JA found evidence upon which the jury could legitimately entertain a reasonable doubt about whether Cutts honestly and reasonably believed that the complainant consented to the sexual conduct covered by counts 3 and 4.  His Honour would have allowed the appeal against the convictions on counts 3 and 4 and ordered a new trial in respect of those counts.  Of course, his Honour was in the minority.
69. [69]
    In R v SAX [2006] QCA 397, the appellant was convicted of rape after a trial.  The appellant and the complainant had been fishing and drinking together.  The complainant consumed a large amount of alcohol.  She remembered getting into the appellant’s car.  She said she then blacked out, and her next memory was of waking up naked in the appellant’s bed, with the appellant having sexual intercourse with her.  The appellant’s evidence was that the complainant made sexual advances towards him before and after they got into his car and, in effect, that she initiated the sexual intercourse between them.
70. [70]
    The Crown case was that the complainant was asleep when she was raped and could not therefore consent to intercourse – not that she was too intoxicated to have the cognitive capacity to consent.  Even though that was the Crown case, the jury sought directions from the trial judge in relation to the impairment of cognitive capacity by alcohol.  The trial judge explained cognitive capacity to the jury and told them (correctly) that a sleeping complainant did not have the cognitive capacity to consent to intercourse.  The trial judge did not direct the jury about a defence under section 24.  The trial judge did not think there was any evidentiary basis for it.  The appellant successfully appealed on the ground that such a defence should have been left to the jury.
71. [71]
    Keane JA (as his Honour then was), with whose reasons Jerrard JA and Jones J agreed, considered the jury’s request for redirection to have signalled that there was a real possibility that at least one juror was minded to come to the view that the complainant was very drunk, but conscious, when sexual intercourse occurred.  That view was available on the evidence, which included evidence from witnesses that the complainant walked to the appellant’s house, when on her version she had “blacked out”.  In those circumstances, there was “room” for a section 24 defence and the jury ought to have been directed accordingly.  His Honour said, at [21]:

“Moreover, if the jury were to conclude that the complainant was conscious, but so stupefied 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 …”

72. [72]
    His Honour spent some time discussing R v Soloman [2006] QCA 244, in which it was recognised that a jury was entitled to refuse to accept the cases of the parties and instead work out for themselves a view of the case which did not exactly represent what either party said.  In Soloman, the complainant said that she was asleep when sexual intercourse occurred.  The appellant said that the complainant was a willing participant in sexual intercourse.  White J (as her Honour then was) said at [40] that 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, then the jury needed to be directed about section 24.
73. [73]
    In his reasons, Jerrard JA added that, in cases of this kind, a section 24 defence almost always arises for consideration.  His Honour said at [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 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.”

74. [74]
    R v Makary [2019] 2 Qd R 528; [2018] QCA 258 was an appeal against a conviction for rape in which it was argued that the trial judge erred in declining to direct the jury about a section 24 defence.  In Makary, the only element in issue was whether sexual intercourse occurred without the complainant’s consent.  The Court of Appeal was unanimous in its conclusion that such a direction was unnecessary, given the evidence, although Sofronoff P, with whom Bond J (as his Honour then was) agreed, looked for more in the evidence to justify leaving the defence than McMurdo JA did.
75. [75]
    The complainant was a Korean national.  On 11 April 2012, she responded to an online advertisement, placed by the appellant, offering English language lessons to Koreans.  The appellant and the complainant exchanged text messages on 11, 12 and 13 April 2012.  They arranged to meet for the first time on the evening of 13 April 2012.
76. [76]
    After meeting in the city on 13 April 2012, the appellant took the complainant to New Farm Park in his car.  She gave evidence that he kissed her on the cheek as a greeting.  Then, at New Farm Park, he gave her alcohol, put his hand around her shoulders, put his hand on her thigh and kissed her on the lips.  She told him that Korean women did not like “this sort of touching”, when he put his hand on her thigh.  But he persisted.  She said she wanted to say something, but did not want to embarrass him, so just smiled.  She tried to push him away when he kissed her on the lips, but felt she lacked the strength to.  She told him that they were “just friends or something like that”.  She had no memory of anything which happened thereafter.
77. [77]
    In the early hours of the next morning, police found the appellant and the complainant in the back seat of his car.  She was naked under a blanket.  Her head was in the appellant’s lap.  She was whimpering; her head was lolling; she was incoherent; her eyes were partly open; and her eyeballs were rolling.  An ambulance was called.  The paramedic who attended her found that she was neither conscious nor alert.  She could not get out of the appellant’s car to get into the ambulance unaided.  At 8.15 am, her blood alcohol concentration was 0.116 per cent.  On the assumption that she was not a heavy drinker, it would have been 0.184 per cent at 1.30 am.
78. [78]
    The Crown case was that the complainant lacked the cognitive capacity to consent to sexual intercourse.  The appellant did not give evidence.
79. [79]
    The complainant was cross-examined on the basis that she had: (a) responded positively to the appellant’s kiss in New Farm Park and had kissed him back; (b) voluntarily joined him in the back seat of his car; (c) helped the appellant remove her upper garments; (d) responded positively when he kissed her and sucked her breasts; and (e) facilitated the removal of her pants.  She denied behaving in that way and there was, obviously, no evidence from the appellant that she did so.
80. [80]
    It was put to her that: (a) intercourse lasted about 10 minutes and the appellant ejaculated; (b) after intercourse, they drank more alcohol, and both fell asleep; (c) she then started vomiting and the appellant helped her wipe the vomit.  She had no recollection of those things.  She could not remember the appellant having sexual intercourse with her.  It was put to her that she consented to sexual intercourse with the appellant.  She denied that she did.
81. [81]
    In support of his submission to the trial judge that section 24 was raised in the case, trial counsel for the defendant nominated seven matters which he said provided evidence capable of supporting an inference that the defendant had an honest and reasonable but mistaken belief that the complainant had given her consent to sexual intercourse.  Some of those matters were to be found in the complainant’s evidence of her own behaviour, such as her evidence that the appellant “kept on trying” to touch her in the way she told him Korean women did not like, but she did not cry out for help because she did not want to offend the appellant.  Others were found elsewhere in the evidence, such as the fact that the appellant drove the complainant to a place with a “romantic atmosphere”.
82. [82]
    Appellate counsel referred to other matters which he submitted ought to be added to those relied upon by trial counsel to provide a basis for a section 24 defence.  These included more details about the complainant’s response to the appellant’s overtures, which came from her evidence, such as her smiling after objecting to him touching her thigh, and the potential impact of intoxication on her inhibitions, passion and self-control.
83. [83]
    At [54] Sofronoff P said:

“It follows that before s 24 can arise for a jury’s consideration in connection with the issue of consent there must be some evidence that raises a factual issue about whether the accused believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way.  Inevitably, that will require some evidence of acts (or, in particular circumstances, an omission to act) by the complainant that led the defendant to believe that the complainant had a particular state of mind consisting of a willingness to engage in the act and believed also that that state of mind had been communicated to the defendant, that is, that consent had been ‘given’.”

84. [84]
    The requirement for evidence raising a factual issue about a defendant’s belief about the complainant’s state of mind as well as evidence of a defendant’s belief that the complainant had freely and voluntarily given consent flowed from Sofronoff P’s analysis of the “meaning of consent” in section 348 if the Criminal Code, as it was then defined:

1. “348Meaning of consent

1. (1)
   In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
2. (2)
   Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained –

1. (a)
   by force; or
2. (b)
   by threat or intimidation; or
3. (c)
   by fear of bodily harm; or
4. (d)
   by exercise of authority; or
5. (e)
   by false and fraudulent representations about the nature or purpose of the act; or
6. (f)
   by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.”

85. [85]
    In obiter in Makary at [49], the President stated that “consent” had two elements: (a) the existence of consent as a state of mind and (b) a requirement that it be “given in the terms of the section”.  The President went on to say at [50] that the “giving” of consent was “the making of a representation by some means about one’s actual mental state when that mental state consists of a willingness to engage in an act”.  In my respectful view, it will be a rare case in which it would be necessary for a jury to consider the issue of consent by reference to those two elements.  It is hard to imagine a case in which it might be said there was a lack of consent because, although a complainant decided, “freely and voluntarily” to consent to a sexual act, the complainant’s consent had not been “given” to a defendant – bearing in mind that the issue will only arise when a sexual act has actually taken place or been attempted.
86. [86]
    Returning to matters relevant to this appeal: Sofronoff P then searched for evidence which “fairly and realistically” raised section 24 ([55]).  At [56], his Honour said that it was “essential that evidence that is said to raise a requirement for a jury to consider section 24 does indeed raise that issue, both as to the defendant’s honest belief and as to the facts that reasonably give rise to that belief”.  At [57], his Honour said that an admission by a defendant to sexual intercourse was ipso facto evidence of a belief that the complainant had consented and given consent (my emphasis):

“… there is a distinction between cases in which an accused charged with rape gives evidence admitting sexual intercourse with the complainant, asserting that the complainant had given consent, and cases in which the accused gives evidence that there was no sexual intercourse at all.  In the former class of cases, the accused’s evidence that the complainant gave consent is, ipso facto, evidence that the accused held a belief that the complainant had consented and had given consent.  A conclusion by a jury that the complainant had not actually consented may still require the jury to consider whether the Crown has proved that the defendant’s belief about state of mind and giving consent was not held mistakenly (sic) or reasonably.”

87. [87]
    Obviously, the reference to “mistakenly” in the second emphasised part of the quote is in error.  To overcome a defence under section 24, the Crown must satisfy the jury, beyond reasonable doubt, either that the belief asserted was not honestly held, or that the belief was not reasonably held.  Evidence from a defendant that the complainant consented to sexual conduct might, either on its own or in combination with other evidence, provide a basis for a section 24 defence, but that will depend on whether the whole of the evidence legitimately allows for the reasonable possibility that the “ipso facto” belief was honestly held and objectively reasonable.
88. [88]
    At [59], his Honour explained that because Makary had not given evidence, his belief could only be proved by inference, which was not to be confused with speculation.
89. [89]
    At [60], his Honour held that a defence under section 24 should have been left to the jury if there was evidence in the case which could give rise to an inference that –

    1. the appellant subjectively believed that the complainant was willing to engage in sexual intercourse with him; and
    2. the appellant subjectively believed that consent had been given; and
    3. those beliefs were reasonable.
90. [90]
    I note that his Honour did not refer in this context to the section 24 requirement that the belief be honestly held.
91. [91]
    I note also that, for the defence to be left, his Honour required evidence which could give rise to an inference that the appellant did in fact subjectively believe (a) and (b) and that his beliefs were in fact reasonable, rather than evidence which gave rise to the reasonable possibility that the appellant honestly and reasonably believed that the complainant was consenting (that is, evidence upon which the jury could legitimately entertain a reasonable doubt about whether the appellant honestly and reasonably believed that the complainant was consenting).
92. [92]
    His Honour did not accept that the evidence supported an inference that the defendant did believe that the complainant was consenting.  His Honour did not analyse the evidence to determine whether it supported an inference that it was reasonably possible that the defendant held an honest and reasonable belief that the complainant was consenting.
93. [93]
    McMurdo JA expressed and applied the test by reference to the Crown’s onus of proof, at [90] and [91] (some footnotes omitted):

“To raise the operation of s 24, there must be some evidence of a mistaken belief by the defendant [footnoting R v Cutts].  Absent any evidence of a mistaken but reasonable belief, there could be no rational basis for a jury to exculpate a defendant by the operation of s 24.  Because the onus of proof remains upon the prosecution, I would not describe the requirement as going so far as a need for evidence on which there could be a finding that the mistaken belief was held.  I prefer the formulation by McPherson JA in R v Millar, which is that there must be evidence on which the jury could legitimately entertain a reasonable doubt about whether the defendant honestly and reasonably believed the complainant had consented.

As the President has said, there was nothing to contradict the complainant’s evidence here that she had lost consciousness before having sexual intercourse.  The events before the couple arrived at New Farm Park were inconsequential.  The events recalled by the complainant at the park are inconsistent with an inclination on her part to engage in any sexual activity.  Hours later, when the complainant was found by police in the rear seat of the appellant’s car, she was weeping and incoherent and her head was lolling.  She had suffered extensive injuries and was unable to get out of the car unaided to go to the ambulance.  Once the jury had accepted the complainant’s version of events, coupled with that evidence by the police officers and the medical evidence, there was no room for a reasonable doubt upon the basis of the suggested mistaken belief of the appellant.”

94. [94]
    In my respectful view, McMurdo JA’s approach is to be preferred.

The relevance of the case put by the appellant at trial

95. [95]
    In the present case, defence counsel agreed with the learned trial judge’s opinion that it did not seem to be “a case of mistake of fact”.  However, defence counsel’s position on the matter is not determinative.  If the evidence at trial fairly raises a defence, then the jury should be directed about it – whatever the position taken by counsel for a defendant.  As Barwick CJ said in Pemble v The Queen (1971) 124 CLR 107 at 117 – 118:

“Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law.  This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.”

96. [96]
    Even if such a defence were abandoned by counsel for a defendant, that “did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused” (118).
97. [97]
    In the present case, trial counsel’s concession that the defence was not raised was not the end of the matter.

The defence should have been left to the jury in the present case

98. [98]
    In my view, the following matters should have caused counsel for the Crown and the defendant to give more than cursory consideration to a section 24 defence in this case –

    1. the appellant’s evidence that implicitly and expressly conveyed his belief that the complainant consented to sexual intercourse;
    2. the appellant’s evidence that the complainant did nothing which conveyed to him that she was not consenting;
    3. the complainant’s concession that it “could be right” that she was “awake” during sexual intercourse, but that her memory of what happened was affected by her alcohol consumption;
    4. other parts of the complainant’s evidence which were not inconsistent with the reasonable possibility of an operative mistake on the part of the appellant, such as (but not only) the following:
       1. Her evidence that she could not really remember what happened.
       2. Her evidence that she was “half there and not there at the same time”.
       3. Her evidence that she tried to get the appellant off her, but was too weak.
       4. Her evidence that she did not realise it was the appellant pulling up her dress, so she “let that go”.
       5. Her evidence that she tried to remove his penis for about 10 seconds (and he kept pushing her hand away and restrained her) and then she decided to give up.
       6. The bulk of her answers in cross-examination, which were to the effect that she could not recall the details of her sexual relations with the appellant.
       7. Her evidence that she did not give the appellant her consent to sexual intercourse.
       8. Her evidence that she did not recall giving the appellant her consent to sexual intercourse.
99. [99]
    In my view, on the evidence, viewed fairly, there was room for operative mistake.  In other words, in my view, there was evidence which could provide a basis for the jury’s conclusion that the Crown had not excluded, beyond reasonable doubt, the possibility that the defendant was honestly and reasonably mistaken about the complainant’s lack of consent.
100. [100]
     This was a case in which the jury might well have taken a moderated view of the evidence of each of the complainant and the defendant.  The jury might have thought the appellant exaggerated his evidence about the intoxicated complainant’s demonstrated enthusiasm for sexual intercourse, and yet have been left with a reasonable doubt about his mistake about her consent on the basis of her behaviour, either as she described it, or on a moderated view of it.
101. [101]
     The jury ought to have been directed that the appellant’s evidence conveyed his belief that the complainant was consenting to sexual intercourse and that the issue for them was whether the Crown had negated, beyond reasonable doubt, the defence of operative mistake by persuading the jury that the appellant’s belief was either not honestly held or not reasonably held.
102. [102]
     A section 24 defence should have been left.