Kilby v The Queen [1973] HCA 30

High Court of Australia Barwick C.J. McTiernan, Menzies, Stephen and Mason JJ. Kilby v The Queen [1973] HCA 30

ORDER Special leave to appeal refused.

Cur. adv. vult.

The following reasons for judgment were delivered by the Court:—

April 12 Barwick C.J.:

The Court has considered this matter and has decided to refuse the application for special leave. It will put its reasons for doing so in writing in due course. The order of the Court is that the application is refused.

Aug. 29 Barwick C.J.

The applicant for special leave to appeal was convicted by a jury on 25th February 1970 at the Central Criminal Court, Sydney, of the rape on 25th January 1969 of Patricia Anne Organ (the prosecutrix) at Old Bar on the North Coast of New South Wales.

At the time of the commission of the offence for which he was convicted the applicant was a little more than twenty years of age. He was tried along with two other young men, one about twenty-two years of age and the other almost the same age. All were charged that they did on the same evening and at the same place "without her consent ravish and carnally know" the said Patricia Anne Organ. One of the others was also convicted of rape but the jury were unable to agree on a verdict in the case of the third accused.

The evidence against the applicant was that on 24th January 1969 the prosecutrix, then aged fifteen years and ten months, had travelled from Sydney to Taree in the company of a young man, sharing with him a motel room for the night though without the occurrence of sexual intercourse between them. She claimed to have been a virgin at the time of the subsequent intercourse by the applicant's fellow-accused who was convicted of rape in respect of that intercourse. Medical evidence given at the trial tended to confirm her claim. The young man with whom she was travelling sought out in Taree some of his mates without success in the first instance. Later he found them, some 80 or 100 in number—described in the evidence as "bikies"—at or near a hotel. One of these "bikies" was known to the prosecutrix: but she did not associate with any of the "bikies" when first they met. After spending the day in Taree, stopping at a "few hotels", a mixed party, which included the prosecutrix and the young man with whom she was travelling, set off for Old Bar Beach, which was about half an hour's travel by motor cycle from Taree. By the time Old Bar Beach was reached it was "late". On arrival there, desultory conversation seems to have occupied the prosecutrix for a time until she was "tackled" by the co-accused who was convicted. He picked her up and carried her about thirty yards away from the spot where she had been conversing with a group, including young women as well as young men. The prosecutrix claimed to have struggled and screamed and to have endeavoured to escape but without avail. The applicant assisted the other accused to lay the prosecutrix down on the grass, at which time they were joined by other youths who helped to hold her down while her slacks, jumper and underpants were removed. She was in menstruation and was wearing a sanitary pad which was removed. Her hands and legs were held whilst she screamed or attempted to do so and cried. A hand was placed over her mouth to prevent her screams being heard. At an early stage the prosecutrix asked that she be "let go" and this was denied her. Thereupon the co-accused who was later convicted "forced her" to have intercourse with him whilst she was so held. Thereafter four other youths did so including the applicant. A gang of youths stood round during the whole performance. Eventually a youth helped her dress and carried her down near a fire which had been kindled. She stayed the night on the beach, went next day to the motor cycle races with a youth and on the Monday "hitch-hiked" to Sydney. She made no "complaint" until she told her mother of the events of the night some considerable time later at Maitland Court before which she had occasion to appear.