New South Wales Court of Criminal Appeal CITATION : R v Porteus [2003] NSWCCA 18 HEARING DATE(S) : 3 February 2003 JUDGMENT DATE : 17 February 2003 JUDGMENT OF : Giles JA at 1; Simpson J at 42; Smart AJ at 43 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence refused. CATCHWORDS : Criminal law - sexual intercourse without consent - whether verdict unreasonable or not supported by the evidence - as to proof that accused knew that complainants were not consenting - knowledge because reckless (Crimes Act s 61R(1)) - recklessness because realised might not be consenting but was determined to have intercourse whether or not were consenting - on facts, jury could be satisfied beyond reasonable doubt. Fitzgerald v Kennard (1995) 38 NSWLR 184; Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81; Hemsley (1988) 36 A Crim R 334; M v The Queen (1994) 181 CLR 487; CASES CITED : R v Cooper [2002] NSWCCA 428; R v Kitchener (1993) 29 NSWLR 696; R v Murray (1987) 11 NSWLR 12; R v Sperotto (1970) 71 SR (NSW) 334; R v Tolmie (1995) 37 NSWLR 660; Steinberg v Federal Commissioner of Taxtion (1975) 134 CLR 640. PARTIES : R v Russell Edgar Porteus FILE NUMBER(S) : CCA 60402/02 COUNSEL : G I Rowling - Crown W C Terracini SC & P D Massey - Appellant SOLICITORS : S E O'Connor - Crown Martin Trisley - Appellant LOWER COURT District Court JURISDICTION : LOWER COURT DC 01/31/0357 FILE NUMBER(S) : LOWER COURT Morgan DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60402/02 DC 01/31/0357 GILES JA SIMPSON J SMART AJ 17 February 2003 R v PORTEUS Judgment 1 GILES JA: The appellant was found guilty on two charges of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. On the first charge he was sentenced to imprisonment for 18 months and on the second charge he was sentenced to imprisonment for 4 years with a non-parole period of 18 months, in each case the imprisonment to commence on 27 August 2002. He appealed against conviction and applied for leave to appeal against sentence. 2 The publication of any matter which identifies the complainants in the proceedings in which the appellant stood charged or any matter which is likely to lead to the identification of the complainants is prohibited, see s 578A of the Crimes Act. I will refer to the complainant in relation to the first charge as C1 and the complainant in relation the second charge as C2. 3 Section 61I provides - "Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years." 4 The definition of "sexual intercourse" in s 61H(1) includes "(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person" and "(d) the continuation of sexual intercourse as defined in paragraph … (b) … ". The charges involved sexual intercourse within para (b) of the definition. 5 By s 61R(1), for the purposes of s 61I - " … a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse." 6 These provisions in substance continue the previous ss 61A and 61D(1) and (2). Recklessness in s 61R(1) takes up the common law of rape so far as it was necessary that the accused knew that the complainant was not consenting or "realised that she might not be consenting and was determined to have intercourse with her whether she was consenting or not" (R v Sperotto (1970) 71 SR (NSW) 334 at 337; see R v Murray (1987) 11 NSWLR 12 at 15; Hemsley (1988) 36 A Crim R 334 at 337-8). Failure to advert at all to the possibility that the complainant is not consenting may also constitute recklessness (R v Kitchener (1993) 29 NSWLR 696 at 697, 703; R v Tolmie (1995) 37 NSWLR 660 at 672; see also Fitzgerald v Kennard (1995) 38 NSWLR 184). Conviction 7 The sole ground of appeal was that the jury's verdicts were unreasonable or could not be supported having regard to the evidence. It was common ground that the approach to be taken was that described in M v The Queen (1994) 181 CLR 487. 8 At the trial there had been no issue as to sexual intercourse within the definition with C1, but sexual intercourse with C2 was in issue; the consent of each of the complainants and the appellant's knowledge of absence of consent were also in issue. Although the appellant's written submissions went further, at the hearing the ground of appeal was expressly confined to the element of the appellant's knowledge of absence of consent. Correctly, in my view, it was accepted that the jury could be satisfied beyond reasonable doubt that the sexual intercourse was without the consent of the complainants. 9 The Crown case as left to the jury was that the appellant knew that the complainants did not consent to the sexual intercourse or alternatively that the appellant was reckless as to whether or not they consented. As to recklessness, the trial judge's directions to the jury included - "If the Crown has in your opinion, established beyond reasonable doubt that the accused had sexual intercourse with the complainant in the charge that you are considering, and was reckless as to whether the complainant consented to the sexual intercourse, then in law the accused will be taken to know that the complainant did not consent to the sexual intercourse. In order to establish that the accused was acting recklessly, the Crown must prove beyond reasonable doubt, either first of all that the accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, notwithstanding that a risk that the complainant was not consenting, would have been obvious to someone with the accused's mental capacity, if he had turned his mind to it. And secondly, the accused's state of mind was such that he realised the possibility that the complainant was not consenting, but went ahead regardless of whether the complainant was consenting or not." 10 It is important to focus on the evidence bearing upon the appellant's knowledge of absence of consent, how the complainants' actions or failures to act would have appeared to him and how he said their actions or failures to act appeared to him. I will not detail other matters in the evidence going to the consent of the complainants. 11 The appellant was the proprietor of a remedial massage business in East Maitland. The complainants attended on him for massages. They did so separately and some months apart, first C1 and later C2. 12 C1 attended on the appellant by appointment. The appellant asked him to remove his clothes, which he did. C1 lay on the massage table on his front and a towel was placed over his backside. 13 In the course of the massage the towel was "slowly moved … up", and in massaging C1's inner thighs the appellant "brushed [C1's] scrotum a few times". C1 "thought nothing of it" and said nothing about it, and the appellant said nothing about it. The appellant massaged C1's buttocks. C1 had not invited or agreed to that, but did not object; he said "he's a professional, he knows what he's doing". 14 C1 was asked to roll over, and did so. The towel was placed over his genitals. The appellant massaged C1's upper body and legs, and C1 was feeling "pretty drowsy; really out of it". The appellant said he would stretch C1's legs, and pushed his legs up to his chest and then returned them; this displaced the towel. 15 The appellant wiped C1 down with the towel, then washed his hands. C1 was lying on the table with his eyes closed. The appellant returned to the table and, according to C1, "began sucking on my penis". At this point C1's penis was not erect. 16 C1 said that he froze, "I just couldn't do nothing, like, was just in shock". The appellant sucked his penis for about a minute, and then started sucking on his testicles, and then started sucking on his penis again. This process took about 5 minutes in all. C1 ejaculated, and the appellant continued sucking on his penis for about another 30 seconds. 17 The appellant told C1 "basically the massage was over", and C1 got up from the table. Before he dressed the appellant came behind him "and started kissing me on the neck, and then he reached from behind me and grabbed my genitals with his hand from behind while I was standing there". The appellant said that C1 would be "the most relaxed man in East Maitland". 18 C1 did not call out or say "No" to the appellant at any time. He said "I was just in shock. I just froze." He agreed that he could have got off the table and pushed the appellant away, and that he had not done so. 19 The appellant's account was broadly consistent with that of C1, although there were not unimportant differences. 20 The appellant said that he embarked on massaging C1, including with C1's permission his buttocks: this was for theraputic reasons but also because he was "interested in [C1's ] body". He might have touched C1's scrotum on a number of occasions during this process, and again when C1 had turned onto his back. He massaged low on the stomach into the pubic hair area because "I guess I was, in my opinion, was getting signs from [C1] that he was happy with what I was doing". The completion of the massage involved "body toning", dragging the hands from the shoulders towards the feet. Touching the person's genitals was "absolutely not" necessary, but the appellant touched C1's genitals "because I wasn't getting any objection from things that I'd done previously and I thought [C1] was interested". 21 After washing his hands the appellant saw that C1 was still lying on the table, with his eyes shut and a smile on his face, and he said that he "thought [C1] was wanting more". He returned to the table, said he would stretch C1's legs, and did so; this included pushing them up to C1's chest. The appellant removed the towel. He saw that C1 was smiling and was starting to get an erection. The appellant stood beside the table, stroked C1's penis, and then briefly masturbated it. He went to C1's testicles, C1 opened his legs, and the appellant put his mouth on C1's testicles. He placed C1's then erect penis in his mouth and sucked it until C1 ejaculated. 22 As C1 was leaving the appellant kissed him on a tattoo on his shoulder, and reached between C1's legs to touch him on the scrotum. 23 C2 attended on the appellant without an appointment, seeking a massage of his shoulder. The appellant told him to undress and lie on the table, which he did. He was not given a towel. 24 The appellant massaged C2, not just his shoulder but down to his knees. In the course of the massage the appellant touched C2 on the penis, it then being "shrivelled up". The appellant touched him again on the penis. C2 said he thought he said "Ah" and shook his head and in cross-examination that he did make the exclamation "but whether he had heard me I wouldn't know". The appellant continued to touch C2's penis and started to masturbate it. C2 did not protest because "I've got injuries and I didn't want to put up no fight because I thought this is going to be worse so I just laid there and said nothing". The appellant continued until C2 had an erection, then put his mouth on C2's penis, "and then he kept on going with his mouth until I ejaculated but I didn't want to put up a fight because it already … ". It took "some minutes" to get to the point of ejaculation. 25 C2 did nothing because he decided to wait "until it's over and then I will try and – when I can make my way away then I will – I will make it clear that I want to leave then". His left side was "a bit paralysed". He did not call out - "I wasn't game because I thought things would be only worse. I thought I'll wait until I can find a – wait until I can find a chance and finish what he's doing and I'll get out because I didn't want to start a fight because I've got – I've got injuries and it would only make it worse. I thought that would be the best thing to do in that matter." He said that he did not leave immediately because the appellant "was supposed to work on my shoulder". 26 The appellant's account differed more significantly from that of C2. He said that he asked C2 only to take his shirt off, but C2 undressed completely. When he began to massage C2's shoulder he saw that C2 was getting an erection. He removed the towel he had placed over C2 and masturbated him to ejaculation. Nothing was said during this time. The appellant denied taking C2's penis in his mouth. The appellant thought that C2 was not there for a shoulder massage, but for a sexual encounter. 27 As to each of the complainants, the appellant's evidence was to the effect that he believed the complainant was consenting. In cross-examination he agreed that he massaged C1 "with a view to having sexual contact with him", and that he "set out to do that as soon as [C1] got into [the appellant's] practice". He agreed that he set out to do the same "when [C2] got onto the table", and that when C2 had no clothes on he thought "I'm in here". 28 The cross-examination included - "Q. Is it the case for you, Mr Porteus, that if he squeals then you let him go? A. Yes. Q. But you don't in these instances, do you. There's no objection, they didn't squeal so you went to the next stage. That's what you did , wasn't it? A. Yes. Q. You decided to try your luck? A. That's correct. Q. In both cases? A. Yes." 29 The cross-examination also included - "Q. You didn't care whether they wanted it or not. That's right, isn't it? A. I did care whether they wanted it or not, yes. Q. I suggest that your professionalism is nothing more than a cover to allow you to touch these two men in a sexual way. What do you say about that? A. That's incorrect. Q. That's what's happened though in fact though, hasn't it? A. On these two occasions, yes. Q. I'll ask you again. I suggest that your alleged professionalism was nothing more than a cover up to allow you to touch [C2] and [C1] in a sexual way. What do you say about that? A. [C1] and [C2], yes." 30 When asked about his evidence of "signals" from the complainants, the appellant said that C1 did not object to his scrotum being touched or to his buttocks being parted and splayed his legs open when his penis was being sucked, and as to C2 that "the man had an erection". 31 The sexual intercourse for the purposes of s 61I was the taking of the complainants' penises into the appellant's mouth. It was not the earlier touchings or masturbation. The appellant's knowledge of lack of consent (including recklessness) must be assessed as at the times he took the complainants' penises into his mouth. 32 Whether the jury could be satisfied beyond reasonable doubt that the appellant knew that the complainants were not consenting should, where there is conflict, be determined on the evidence of the complainants rather than that of the appellant. The jury were entitled to disbelieve the appellant's account of the encounters, and certainly disbelieved the appellant so far as he said that he did not take C2's penis into his mouth, although disbelief of the appellant's evidence to the effect that he believed the complainants were consenting to sexual intercourse does not establish that the appellant knew that they were not consenting (see for example Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 684, 694; Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 at 87; R v Cooper [2002] NSWCCA 428 at [24]). Acceptance of the complainants' evidence was entirely open to the jury, and no submission to the contrary was maintained. 33 That is of some significance. The appellant submitted that there was no demonstration of non-consent, that there were "messages", "signs" or "signals" which, albeit incorrect, precluded satisfaction beyond reasonable doubt that he did not know that the complainants were not consenting. The signals on which he relied included things happening after the sexual intercourse took place, which can not be taken into account. If the source is the evidence of the complainants, the available actions or failures to act prior to the times the appellant took the complainants' penises into his mouth, seen also in the light of the continuation of the sexual intercourse, are rather altered from the available actions or failures to act in the appellant's evidence. 34 In the case of C1, he lay naked on the table, but that was because the appellant told him to take his clothes off. There was brushing of C1's scrotum and, by the stretching of his legs, exposure of his genitals, but if the appellant's evidence is not accepted there was no more and no question of stroking the penis, masturbating, and turning to the testicles before the appellant took C1's penis in his mouth. On C1's account, there was a stark sucking of his penis after acts (touching the scrotum, stretching the legs) which were not seen by him as inconsistent with appropriate massage. 35 In the case of C2, he also lay naked on the table because the appellant told him to take his clothes off. There was touching of C2's penis, and whether or not the appellant could have heard C2 say "Ah" C2 shook his head. The appellant masturbated C2's penis until he got an erection. On C2's account, the appellant put his mouth on his penis after acts plainly inconsistent with massage of the shoulder, but after the shake of his head (C2's account could be more favourable to the appellant on knowledge of consent than the appellant's own account, which offered as signals only C2's nakedness and that he had an erection). 36 The jury had the advantage of seeing and hearing each of C1, C2 and the appellant give evidence. This must have been of assistance in deciding what the complainants' actions or failures to act conveyed to the appellant and whether at the times the appellant took their penises into his mouth there remained in his mind the possibility (at the least) that they were not consenting which he then disregarded. An illustration found in the transcript of addresses is that C2 was recognised as an unsophisticated man, which could well affect the jury's conclusions on these matters. Although I have not detailed other matters in the evidence going to the consent of the complainants, the appellant submitted that what each of C1 and C2 did after the sexual intercourse took place, primarily material to the issue of their consent, could also shed light on how their actions and failures to act appeared to the appellant: if C1 and C2 then appeared to have consented, that could be material to whether they appeared to be consenting at the time of the sexual intercourse. If so, although I am far from persuaded, it was even more a matter in which the jury had an advantage over this Court. I do not think the appellant's position is thereby assisted. 37 In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew that C1 was not consenting, and accordingly (the other elements of the charge not now being in question) that the appellant was guilty: M v The Queen at 493-5. Whether or not knowledge that C1 was not consenting could be found, I consider that recklessness could readily be found. C1 attended on the appellant for a massage. The appellant set out to massage him with a view to having sexual contact with him. He had C1 in a vulnerable position, naked on the table, and took advantage of it. The appellant could not have believed in the beginning that C1 consented to the appellant sucking his penis, but without any more preliminaries than the touching of the scrotum and leg stretching began to suck it. There was clearly no overt consent. The view was well open that the appellant believed that C1 might not be consenting but, as he said, "decided to try his luck" and moved to sucking C1's penis regardless of whether or not C1 was consenting. The offence was complete at that time, and that C1 froze and did nothing, even while the sucking continued for some minutes, did not mean consent to the act of sexual intercourse within the definition. Nor in my opinion were the jury obliged to regard the doing nothing as destructive of absence of knowledge that C1 was consenting because removing the possibility (at the least) that C1 was not consenting when the sucking began; in the circumstances the reaction of freezing was not unnatural. 38 There is more to be said in the case of C2, because on C2's account what I have called preliminaries were more extensive, massaging other than shoulder massage and the touching of the penis and masturbation. On the other hand, and leaving aside saying "Ah", C2 shook his head. Nonetheless, in my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew that C2 was not consenting. The same consideration of the appellant's view to sexual contact and taking advantage of vulnerability apply. The view was open that, although there was not a strong unfavourable reaction to the touching and masturbation, the appellant still believed that C1 might not be consenting and again "decided to try his luck". C2 had shaken his head at the time of the touching, and while there had not been further protest at the time of the masturbation the next step of the appellant putting his mouth on C2's penis (being the relevant sexual intercourse) was an escalation as to which the jury could conclude that the possibility (at the least) that C2 was not consenting was present to the appellant's mind and was disregarded. A like consideration as to C2 doing nothing while the sexual intercourse continued applies. 39 In neither case, in my view, has the ground of appeal been made good. Sentence 40 The appellant acknowledged that he could not point to a sentencing error and that the sentences were "within the range". He submitted that the sentences were "in the upper range", and that this Court "could consider bearing in mind what was [the appellant's] good character, the fact of the consequence of the conviction". In the absence of a sentencing error or undue harshness of sentence, no ground for this Court to intervene has been made out. 41 The appeal against conviction should be dismissed. Leave to appeal against sentence should be refused. 42 SIMPSON J: I agree with Giles JA. 43 SMART AJA: I agree with the orders proposed by Giles JA and substantially with his reasons. 44 Senior counsel for the appellant attached weight in his submissions to neither C1 nor C2 wearing underclothes when they went to the massage practice. It was open to the jury to regard that as an unimportant factor and, in any event, as not justifying what the jury found the appellant did and providing little or no basis for the contention that the appellant did not know that C1 and C2 were not consenting. Those are also my views. 45 It was open to the jury to accept the evidence of C1 and C2 as proving the elements of each offence beyond reasonable doubt. C1 and C2 went to the appellant's practice for massage treatment, expecting to pay for such treatment on a normal basis. The appellant had a different focus. The jury were entitled to regard the evidence of the appellant as raising no reasonable doubt as to the commission of either offence. As Giles JA has pointed out the jury disbelieved the evidence of the appellant so far as he said that he did not take C2's penis into his mouth. The jury was also entitled to reject the evidence of the appellant except to the extent that it coincided with or was corroborated by the evidence of C1 and C2. 46 The sentences were not excessive. ********** Last Modified: 02/20/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.