R v Makary

The appellant was convicted of one count of rape.  On appeal against conviction it was argued that the facts could give rise to an inference of honest and reasonable but mistaken belief as to consent and the trial judge should have directed the jury to consider s 24 of the Criminal Code. Appeal dismissed. The reasons include detailed observations about the operation of s 24 in relation to rape charges.

Sofronoff P and McMurdo JA and Bond J

9 October 2018

The appellant was convicted of one count of rape.  There was no dispute the appellant and complainant had sexual intercourse.  Consent was the only live issue at trial. Trial counsel for the appellant requested that the jury be directed to consider s 24 of the Criminal Code and whether the appellant held an honest and reasonable but mistaken belief as to consent. The trial judge declined to make such a direction. [1].

The appellant challenged the conviction and sought leave to appeal against sentence. 

In relation to the appeal against conviction, counsel for the appellant relied upon nine facts from which, it was argued, the jury could have inferred there had been a mistake as to consent. [30]–[31]. The reasons of Sofronoff P consider the history of the crime of rape, the concept of consent and the construction of ss 348 and 349 Criminal Code. [32]–[52]. His Honour observes that in most cases, it can be expected that proof that consent was not given will thereby prove the necessary state of mind. [53]. It follows that there must be some evidence that raises a factual issue about an accused’s belief of consent before s 24 arises. If the evidence “fairly and realistically” raises the defence, the onus lies upon the prosecution to exclude mistake of fact as an excuse. [54]–[55].

His Honour observed that in a case such as this, where the appellant alleged consent but did not give evidence, the s 24 element of the accused’s belief can arise only by way of inference. Inference must not be confused with speculation. [59].

In this case, there was no evidence to contradict the complainant’s account that she lost consciousness before sexual intercourse took place. [62]. The reasons address the other facts relied upon by counsel for the appellant, noting that the material time to consider consent was the time of penetration. [62]–[68]. The facts relied upon all occurred earlier in the evening and were irrelevant at the time of penetration. [68].

His Honour observed:

“An absence of objection is not the same as giving consent.  There is no a priori consensus to having sexual intercourse by reason of a person’s submission to unwelcome, but mild, sexual overtures and these do not, by the lapse of time, metamorphose into the giving of consent to sexual intercourse.” [70]. 

Justice McMurdo and Bond J agreed with the reasons of Sofronoff P regarding the appeal against conviction, which was dismissed. [72], [86], [94]. Leave to appeal against sentence was refused (McMurdo JA dissenting).

K Gover

Editors’ Note: There are also two noteworthy points in the related decision of R v Makary [2018] QCA 257. First, whether it is necessary to direct on s 24 Criminal Code where the accused gives evidence denying sexual intercourse in rape case. [83]–[89]. Second, the sentencing judge erred by sentencing on the premise that each complainant had been raped or otherwise assaulted many times rather than by the single act for which the appellant was convicted. The Court then considered whether such an error meant the Court of Appeal must consider, in the exercise of its own discretion, whether to re-sentence. [137]–[144], [178] (per Sofronoff P and Bond J). [170]–[171] (per McMurdo JA).