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This case is interesting because it demonstrates that the definition of “consent” in s 348 of the Criminal Code 1899 applies to offences other than those contained in Ch 32 of the Code. This issue arose in the context of an appeal against conviction, where the appellant was convicted of one count of rape (count 2) and acquitted of one count of indecent assault (count 1). The appellant appealed his convictions on the basis that the difference in the verdicts demonstrated that the guilty verdict was unreasonable. In dismissing the appeal, the Court held that the definition of consent in s 348 applies to the element of assault in the offence of assault with intent to commit rape (s 351) and indecent assault (s 352).
Sofronoff P and Morrison and Mullins JJA
24 July 2020
The complainant for both counts was a 16 year old girl and a family friend of the 57 year old male appellant. She gave evidence that the incidents occurred one afternoon whilst the complainant was cleaning the appellant’s house. . She stated that while in the kitchen of the appellant’s home, he brushed his fingers against her body and then moved his hands between her legs to rub in the area of her vagina. . In evidence, the complainant accepted that she did not resist the appellant’s acts, either verbally or physically, and explained that she was “frozen”. . This comprised count 1.
The appellant then encouraged the complainant to give him a massage. The complaint protested, telling the appellant that “I’d make your back worse” and “I’m not good at massages”. The appellant however guided the complainant to his bedroom, where he removed all his clothing, except for his boxer shorts. , . While the appellant lay on the bed, the complainant reluctantly pushed two fingers into his back. .
The appellant then took over, explaining “You lay down. I’ll show you how it’s done”. Wearing all her clothes, the complainant lay face down on the bed. The appellant put baby oil on his hands and massaged the complainant, including across her lower back and on her buttocks. He then inserted his fingers, two to three times, into her vagina. –.
The appellant denied that these sexual acts occurred.
The Court held that there were two reasons for the inconsistent verdicts. First, with respect to count 1, defence counsel’s argument was able to focus on the complainant’s lack of objection to the appellant’s acts. Defence counsel was not able to run the same argument in respect of the count 2. Second, the acquittal on count 1 was also explicable by the inadequacy of the jury directions on the issue of consent. The jury was not given any instruction about the complainant’s inaction or her failure to object. –.
In reaching this decision, the Court considered whether the definition of consent in s 348 of the Code apply to inform the element of assault in s 351 (assault with intent to commit rape) and s 352 (sexual assault). This note is specifically concerned with that issue.
Definition of consent in s 348 of the Code
Consent is defined in s 348 of the Code as “In this chapter, consent means consent freely and voluntarily given by a person”. On the face of it, consent in s 348 applies only to offences defined in Ch 32 of the Code.
The offence of indecent assault (s 352(1)(a)) is also defined in Ch 32 as “[a]ny person who … unlawfully and indecently assaults another person … is guilty of a crime”. .
While this offence makes no express reference to consent, it uses the word “assault”. Assault is defined in s 245(1) to mean:
“A person who strikes, touches, or moves or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent … is said to assault that other person, and the act is called an assault.” .
The offence of assault (s 245(1)) is contained in Ch 26 of the Code and not Ch 32. .
The Court noted that if s 348 only applied where the word “consent” was an express part of the definition of an offence in Ch 32, it would only apply to rape (s 349), attempted rape (s 350) and to the element of rape in assault with intent to commit rape (s 351). It would not apply to element of assault in assault with intent to commit rape (s 351) or sexual assault (s 352). . The Court held that this result was not sensible and found that the definition of assault in s 348 applies to inform the element of assault in assault with intent to commit rape (s 351) and sexual assault (s 352). , .
In support of this finding, the Court pointed to the “distinct” way in which the Code treats sexual offences. The Court noted that s 578 (Charge of offence of a sexual nature) makes special provision for indictments charging sexual offences. Section 578 allows a person who has been charged with rape under s 349 to alternatively be convicted of an indecent assault under s 352. . Sofronoff P stated that:
“I t would be absurd to interpret s 348 so that a jury had to consider consent for an alternative verdict of guilty of indecent assault in one way and consent in the offence of rape, to which indecent assault is the alternative, in another way.” .
A Hughes of Counsel