Reported Decision : 151 A Crim R 215 New South Wales Court of Criminal Appeal CITATION : Regina v Banditt [2004] NSWCCA 208 HEARING DATE(S) : 16/06/04 JUDGMENT DATE : 4 August 2004 JUDGMENT OF : Bryson JA at 1; James J at 2; Kirby J at 104 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed CATCHWORDS : Sexual assault - Crimes Act s 61I - consent to sexual intercourse - recklessness as to consent to sexual intercourse. LEGISLATION CITED : Crimes Act DPP v Morgan [1976] AC 182 Miller v The Queen (1981) 55 ALJR 23 R v Daly [1968] VR 257 R v Hemsley (1988) 36 A Crim R 334 R v Henning NSWCCA 11 May 1990 CASES CITED : R v Kitchener (1993) 29 NSWLR 696 R v Lavender [2004] NSWCCA 120 R v Murray (1987) 11 NSWLR 12 R v Sperotto (1970) 71 SR (NSW) 334 R v Tolmie (1995) 37 NSWLR 660 R v Zorad [1979] 2 NSWLR 764 PARTIES : Regina v Stephen Gary Banditt FILE NUMBER(S) : CCA 60114/04 COUNSEL : Frearson - Crown S Odgers SC/A Francis - Appellant SOLICITORS : CK Smith - Crown S O'Connor - Appellant LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/0071 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60114/04 BRYSON JA JAMES J KIRBY J Wednesday 4 August 2004 REGINA v Stephen Gary BANDITT Judgment 1 BRYSON JA : I agree with James J. 2 JAMES J : Stephen Gary Banditt appealed against his conviction, after the trial in the District Court before his Honour Judge Freeman and a jury, of an offence that on 6 October 2001 in a New South Wales country town he broke and entered the dwelling house of an adult woman (who I will refer to as "the complainant") and committed a serious indictable offence in the dwelling house, namely sexual intercourse with the complainant without her consent and knowing that she was not consenting. 3 The offence of which the appellant was convicted was an offence under s 112(1) of the Crimes Act , which provides, so far as is relevant, that whosoever breaks and enters any dwelling house and commits any serious indictable offence therein is liable to imprisonment for fourteen years. The expression "serious indictable offence" is defined in s 4 of the Crimes Act as meaning an indictable offence that is punishable by imprisonment for life or for a term of five years or more. Under s 61I of the Crimes Act a person who has sexual intercourse with another person without the consent of that other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for fourteen years and hence an offence under s 61I is a serious indictable offence. 4 The offence of which the appellant was convicted was not the offence for which he was indicted. The offence charged in the indictment which was presented against the appellant was an aggravated offence under s 112(2) of the Crimes Act , alleging, as circumstances of aggravation, that at the time of the breaking and entering the appellant knew that there was a person in the dwelling house (see s 105A(1)(f)). The jury found the appellant not guilty of the aggravated offence charged in the indictment but, as permitted by s 115A, returned a verdict of guilty of an offence under s 112(1). 5 His Honour Judge Freeman sentenced the appellant to a term of imprisonment for five years commencing on 10 September 2003, the date on which the appellant was taken into custody after the jury returned its verdicts, with a non-parole period of three years. In the event of his appeal against conviction not succeeding, the appellant sought leave to appeal against the sentence imposed by Judge Freeman. The Crown Case 6 The principal witness in the Crown case was the complainant. What follows is a brief summary of her evidence in chief. 7 In October 2001 the complainant lived in a two-storey townhouse in the country town. The appellant was a cousin of the complainant, who had lived in the town for about four or five months. The complainant did not have any close relationship with the appellant. 8 About two months before the date of the alleged offence the appellant came to the complainant's house. She let him into the house and the two of them sat on the same lounge. The appellant tried to kiss the complainant. She pushed him away, told him "to stop it" and told him "I think it's time you went home now". The complainant persisted in asking the appellant to leave and the appellant ultimately left. The complainant was upset by what had happened and told her mother what had happened. 9 About two weeks before the date of the alleged offence the appellant came to the complainant's house late at night and "banged" on the door. The noise woke the complainant and her neighbours and a neighbour told the appellant in coarse language to leave. The appellant left. 10 On the evening of Friday 5 October 2001 the complainant went to a tavern in the town with some friends. Inside the tavern she noticed the appellant with some of his family, who included a Mr and Mrs Sheridan, who were the owners of the tavern and the appellant's uncle and aunt. The complainant approached the appellant and complained to him about his conduct on the previous occasion in coming to her house late at night and knocking loudly on the door. 11 The complainant left the tavern at about half past eight and went to a hotel. She left the hotel at about 10 o'clock and after spending about an hour at a friend's place returned home. 12 At her home the complainant, before going to bed, made sure that everything was locked, including securing the windows of the townhouse by rods or dowels which would prevent the windows being fully opened. That night there was no one else in the townhouse. The complainant's children were spending the night with the complainant's mother. The complainant went to bed. In accordance with her usual practice, she slept naked. 13 The complainant's next recollection was "waking up with somebody on top of me and not knowing who it was". She could feel a person trying to push his penis into her vagina and the penis actually entered her vagina. She could not see much because the television set, which she had left on, had been turned off. Her evidence continued:- "I realised who it was… when I'd sort of reached up and touched his head and realised that he had a bald head… I asked him how could he do this to me. I told him to get off and to get out". The complainant could feel that the appellant had no clothes on. 14 The complainant pushed the appellant off with her hands and feet and told him to get out. She estimated that it was only a matter of seconds between her waking up and pushing the appellant off. The appellant got up from the bed and got dressed. The complainant persisted in telling the appellant to leave the house and the appellant left. 15 After the appellant had left, the complainant found a pay slip of the appellant's at the end of her bed and the appellant's glasses on the top of the television set. When she went downstairs she observed that the window of the downstairs toilet in the townhouse was fully ajar. 16 After having a shower because she felt "yucky", the complainant went to the house of a neighbour Barbara Bolte and complained that her cousin had broken into her house and had tried to have sex with her while she was asleep. In her evidence the complainant explained her use of the word "tried" in speaking to Barbara Bolte by saying that the appellant "got his penis into me but he didn't have full intercourse". The complainant then returned to her house. 17 In the morning the complainant received a telephone call from a male friend and she asked him to come to her house. While she was waiting for the friend to arrive, she observed there was a chair outside the downstairs toilet window. After the friend arrived she told him what had happened. While she was outside the unit with the friend she discovered a can of Bourbon and Coca Cola on the top of her garbage bin. The complainant's mother arrived at the house, returning the complainant's children, and the complainant told her mother what had happened. 18 The complainant decided to report the incident to the police. On the same day (6 October) she reported the incident to the police, was medically examined at a hospital and was interviewed by a police officer. 19 In cross-examination the complainant agreed that about three months before 6 October she had seen the appellant at the tavern and had then kissed him on the cheek. The complainant denied that on occasions when she had seen the appellant at the tavern she had invited him to stay the night at her house, if it was difficult for him to return to where he was living at a place several kilometres outside the town. The complainant denied that on a Friday night about six weeks before 6 October she had invited the appellant to stay at her house, she had left the door unlocked for him, she had fallen asleep on a lounge, the appellant had arrived at the townhouse and the complainant and the appellant had had consensual sexual intercourse. 20 The complainant accepted in cross-examination that on an occasion which she said was four weeks before 6 October the appellant had come to her house with some beer, she had invited him to come in, he had tried to kiss her, she had said "no" and the appellant, after some persuasion, had left. 21 The complainant was cross-examined about her recollection of the alleged sexual assault. The following questions and answers occurred in the cross-examination:- "Q. You said that when you woke up you felt someone on top of you? A. Mm mm Q. That he was trying to push his penis into you? A. Mm mm. Q. And kiss you? And then he did push it in? So do you recall having any – having a dream or anything like that, immediately before you woke up? A. It was – that was like a dream, cause I was half asleep. Q. Was there sort of a waking period where you weren't sure whether you were awake, or asleep? A. Yes. Q. And I suppose you wouldn't know how long that went on for? A. It was only a matter of seconds. Q. But you don't know that do you, if you were half asleep? A. Well I, something made me wake up, very quickly. Q. So do you say – let's be clear about this, do you say that you were awake when his penis was placed inside your vagina? A. No I believe I was in like a half-asleep-dream sort of state. Still coming out of-- Q. You wouldn't say you were asleep though? A. I was, no. I was in that half-asleep sort of stage". 22 The complainant said in cross-examination that when she woke up she believed that someone other than the appellant was having sex with her and it was not until she reached up and felt who it was that she realised it was the appellant. 23 Other witnesses gave evidence in the Crown case. 24 Barbara Bolte gave evidence that the complainant knocked on her door "late in the evening or in the early morning" and that the complainant appeared to be extremely distressed. The complainant told Barbara Bolte that "my cousin raped me, they (sic) climbed into my bed, I didn't know or didn't realise who it was". 25 The complainant's mother gave evidence that "about six to eight weeks before the incident… (the complainant) told me that Stephen had tried to kiss her and she wondered why, because he was her cousin, she was upset about that". The complainant's mother said that the complainant was crying. 26 The complainant's mother gave evidence that on the morning after the incident she had gone to the complainant's house to drop off the complainant's children. The complainant was "visibly upset". The complainant said to her mother "I had sex with Stephen. I didn't know it was him. When I realised it was him I pushed him off. I'm sick about it". 27 The complainant's mother also gave evidence that a few days after 6 October she received a telephone call from the appellant. In the telephone conversation "he said he didn't do anything. He did say that (the complainant) had invited him to stay at her house on a couch, if he needed a place to sleep… I said to him, 'you were there weren't you?' and he said 'Yes I was'". 28 A medical practitioner gave evidence that on 6 October 2001 she had examined the complainant. The medical practitioner said "I didn't find any injuries. The only thing I noticed was a little bit of redness around the genital area but it wasn't of any particular significance in view of her story". The complainant's physical condition as observed by the medical practitioner could have been consistent with her having had consensual sexual intercourse the night before. 29 Detective Senior Constable Pearce gave evidence of various matters in the police investigation. 30 At about 7 o'clock in the evening of 6 October Constable Pearce went to the tavern and spoke to the appellant. He told the appellant that the complainant had claimed that in the early hours of the morning the appellant had broken into her unit and had had sexual intercourse with her without her consent. Constable Pearce arrested the appellant and cautioned him. The appellant said, "I went around there, tried the windows and doors, no one answered. I went and stayed at a mate's place". The appellant's uncle Mr Sheridan was present during this conversation. 31 Constable Pearce interviewed the appellant in an electronically recorded interview commencing at 7.45 pm on 6 October. Mr Sheridan was also present at this interview. 32 In his answers in the interview the appellant said that he had met the complainant at the tavern, that he had spent several hours at the tavern, that he had then gone to a hotel and then to a private party. Afterwards he had gone to the complainant's house to see if he could stay the night there. He knocked on the windows and doors of the house and got no answer. The back door of the house was unlocked and he went inside. Inside the house he yelled for the complainant. He went upstairs and found the complainant asleep in her bedroom. He spoke to the complainant and she woke up. He asked the complainant if he could stay the night at her house but the complainant said that he had better leave and the appellant left. 33 In the interview the appellant accepted that what he had said in the interview was a different version of events from what he had told Constable Pearce earlier at the tavern. 34 Constable Pearce obtained a buccal swab from the appellant, with the appellant's consent, and also obtained the clothes and shoes the appellant had been wearing on the night of 5-6 October. 35 Detective Senior Constable Wellings gave evidence that on the evening of 6 October he had examined the complainant's unit and areas outside the unit. The impression of a shoe print on the chair outside the downstairs toilet window corresponded with the sole of the shoes the appellant had been wearing. 36 Constable Wellings gave evidence, without objection, that DNA testing of a stain on the underpants the appellant had been wearing showed that the stain contained two DNA profiles, one matching the complainant's and one matching the appellant's, as ascertained from the buccal swab taken from him. 37 A police fingerprint expert gave evidence that he had developed palm prints at several locations on the window of the downstairs toilet and on the toilet seat in the downstairs toilet and that, in his opinion, the palm prints were identical with the palm prints of the appellant. The witness expressed the opinion that the position of the palm prints was consistent with the appellant having climbed through the toilet window and across the toilet fittings. 38 There was also admitted into evidence in the Crown case an extract from the transcript of evidence given by the appellant in proceedings on sentence on 26 March 2003 before his Honour Judge Hosking. The appellant had pleaded guilty to a charge which was the same as the charge on which he was subsequently indicted before Judge Freeman and on 26 March 2003 he gave evidence in his own case in the proceedings on sentence. 39 The fact that the appellant had earlier pleaded guilty to the same charge was not disclosed to the jury at the appellant's trial. However, in the extract from his evidence in the proceedings on sentence which was admitted at the appellant's trial the appellant said that he had gone to the complainant's house because he needed somewhere to stay for the night, that he woke the complainant and "then I laid down and just sort of hugging and kissing and one thing led to another and that was it.. and then I was told to leave a couple of minutes later". The appellant denied that he had "forced sex upon her". 40 As a result of this evidence and of further evidence given by the appellant and a discussion between Judge Hosking and counsel (the transcript of which was not admitted into evidence in the trial before Judge Freeman), Judge Hosking decided that he should reject the appellant's plea of guilty, because of doubts about whether the complainant had not consented and whether the appellant knew that the complainant had not consented. Accordingly, the appellant's plea of guilty was rejected by Judge Hosking and the appellant subsequently stood trial in the trial conducted before Judge Freeman. The Defence Case 41 The appellant gave evidence at the trial. The following is a brief summary of his evidence in chief. 42 The appellant said that he had had a number of meetings with the complainant. He had seen the complainant once or twice a week at the tavern. At the tavern the complainant would greet him with a hug and a kiss. The complainant told the appellant that, if the appellant needed somewhere to stay, he could stay at her house. She would leave the front door unlocked. 43 A couple of weeks after their first meeting at the tavern the appellant had gone to the complainant's house. The front door of the house was unlocked and the appellant entered the house. The complainant was asleep on a lounge downstairs. The appellant assisted the complainant upstairs into her bedroom. In the bedroom the appellant and the complainant hugged and kissed and "we ended up having sex". 44 After this incident the appellant and the complainant saw each other at the tavern. The complainant greeted the appellant with a hug and a kiss. 45 A couple of weeks later the appellant went to the complainant's house and knocked on the door. There was no answer. A neighbour came out and told the appellant to leave. 46 A week or so later the appellant went to the complainant's house with some beer. The complainant invited him into the house. Inside the house the appellant tried to kiss the complainant but the complainant said "don't". 47 The appellant gave his version of what had happened on the night of the 5-6 October. He did not recall the complainant raising her voice to him at the tavern. The appellant spent time at the tavern, then at a hotel and then at a private party. 48 The appellant decided to go to the complainant's house and seek accommodation for the night there. At the complainant's house he knocked on the windows and doors but there was no answer. He entered the house through the downstairs toilet window, using the chair. He did not notice any stick or other device to stop the window being opened. 49 After entering the house the appellant turned some lights on downstairs and called out the complainant's name. He then proceeded upstairs and entered the complainant's bedroom. He saw the complainant lying in her bed. He called the complainant's name and shook her leg. "She woke up a little bit – like she was a bit groggy". He asked the complainant what she had done after being at the tavern and the complainant said that she had gone home after being at the tavern. The appellant laid down beside the complainant on the bed. The appellant asked the complainant where the children were and the complainant said that they were at her mother's. The appellant's evidence continued:- "Then I put my arm around her and we kissed again and hugged each other and then we were like stroking each other's upper bodies – like we were kissing". ….. "Then like (the complainant) when stroking me she lifted my shirt up a bit and then we were still kissing and then I've stopped kissing her and then we've pulled my shirt off and then I took my shoes and pants off while I was laying down beside her and hopped under the blankets with her". ….. "Some more kissing and hugging and then I hopped on top of her and we were engaged in – well getting to engage in having sex with her and then she's – minute or so later, she's pushed me and said "No, stop". 50 The appellant said that by the time the complainant said "stop" the appellant had penetrated the complainant. The following questions and answers occurred:- "Q. And did – did you do anything when she told you to stop? A. Yeah, I stopped having sex with her and sort of lent back and got off the bed and asked her what was – what was the problem, you know what's wrong. Q. Did she answer that? A. No she just told me to leave. Told me to leave and get out and go – go home. Q. And what did you do then? A. Me, I got my clothes and went out – oh I got dressed, went out the bedroom and down the stairs and out through the front door. Q. Where did you go? A. I went to a friend's place just down the road a little bit further towards (the country town) and stayed at his house". 51 The appellant admitted that he had lied when speaking to Constable Pearce at the tavern, in denying that he had entered the complainant's house, and admitted that he had lied when being interviewed by Constable Pearce, in saying that he had entered the house through an unlocked door and in denying that he had had sexual intercourse with the complainant, but said that on each occasion he had been too embarrassed to tell the truth in the presence of his uncle Mr Sheridan. 52 The appellant's uncle Mr Sheridan gave evidence at the trial that when police came to the tavern on the evening of 6 October and told him that they wished to charge the appellant, Mr Sheridan said to the appellant "did you do it? You don't want to have done it" and the appellant then replied "no". 53 Some witnesses gave fairly brief evidence in the defence case that they had observed behaviour on the part of the complainant which might show that the complainant had some sexual interest in the appellant. The Summing-up 54 The only ground of appeal against conviction relates to the trial judge's directions about the element of an offence under s 61I, that the accused knew that the victim was not consenting to sexual intercourse and it is convenient, at this stage, to refer to relevant parts of the summing-up. 55 The trial judge said at p 23 of the summing-up that the Crown case on the element of absence of consent in the alleged offence under s 61I was that the appellant had penetrated the complainant "when she was asleep and consequently no consent can arise". However, the trial judge put an alternative Crown case on the element of absence of consent, namely that, if the jury thought that there was a period of time during which the complainant was neither asleep nor really awake and that it was while she was in this state that she gave an apparent consent but that she gave her apparent consent in the mistaken belief that the other person in the bedroom was someone other than the appellant, then that apparent consent would not be a valid consent (s 61R(2)(a)(i)). 56 The trial judge then turned to the element in an offence under s 61I of knowledge of the absence of consent. His Honour said that the Crown case (or at least the Crown's primary case) on this element of the offence was that, if the complainant's evidence was accepted, the appellant would have had to have known that the complainant was not consenting, because he had penetrated the complainant before she had woken up. The trial judge then reviewed some of the arguments of the Crown prosecutor and counsel for the appellant on the issue of whether it was reasonably possible that there had been an absence of knowledge that the complainant was not consenting. 57 One of the arguments reviewed by the trial judge was an argument by the Crown that, even on the appellant's own evidence at the trial, on the last occasion before 5 October on which he had attempted any intimacy with the complainant, that is when the appellant had gone to the complainant's house and had attempted to kiss the complainant, the complainant had rebuffed him. The trial judge continued at pp 27-28 of the summing-up:- "….the Crown suggested to you late in the piece in his closing address, that even on the accused's point of view, you might find that he knew she was not consenting, because he was reckless. The law says, a person who has sexual intercourse with another, without the consent of that other person and who is reckless as to whether that other person consents or not, is to be taken to know that the other person is not consenting. So if you just go ahead and do it will-nilly, not even considering whether the person is consenting or not, you are reckless and the law says you are deemed to know that the person is not consenting. It is in that context that the Crown argues, as I understand it, that even on his own version of things, the last attempt at intimacy, he had been rebuffed. He had no right to assume that she was going to consent on this night; it was after all half past 2 in the morning, she was asleep when he got there. There had been no prior arrangement between them. She was only, in his terminology, 'vaguely awake' and he had no right to consider that she was likely to be consenting, indeed he was reckless as to whether she did or not express consent. Or he may not have even thought about it. If you do not think about it of course, that is reckless in the extreme. What you have to concentrate on is what was in his mind. It is not a question of deciding whether you would have acted in the same way or whether the notional reasonable man would have acted in the same way in the situation in which the accused found himself. You have to consider what was in his mind. Did he have any basis for a belief that she was consenting or has the Crown persuaded you that he had in fact no basis for any such belief, either because he had penetrated her before she woke up and because there had been no prior sexual act between them and it is relevant to consider, as Mr Carty said to you yesterday, that he had, in fact, taken alcohol that night, because if he is intoxicated, that certainly does have an effect, to a greater or lesser extent, upon his capacity to form judgments about whether this is a reasonable thing to do and so on, as to whether it is appropriate to believe that she is consenting". 58 His Honour then referred to the evidence about the extent to which the appellant was intoxicated. 59 In reviewing the Crown's submissions the trial judge said at p 42 of the summing-up:- "…the more likely scenario being that which the Crown sketched, with him entering the house, not making his presence known at all, but penetrating her before she was awake or fully awake and indeed on that basis he suggests to you that at the very least, you would find that he had been reckless and then the law would require you to find that he knew, because a person who is reckless about whether there is consent or not is deemed to know there is not consent". 60 In reviewing counsel for the appellant's submissions the trial judge said at p42:- "… he had this belief that she was consenting, because of their prior experience (of sexual intercourse), because of the way in which she was physically reacting (on the night of 6 October, according to the appellant's evidence) and so on". 61 At the end of the principal part of the summing-up the trial judge asked whether counsel had any applications and both counsel said "no". 62 After the jury had retired they asked a number of questions which are not relevant to the present appeal. Some of these questions concerned the alleged circumstances of aggravation, that the appellant knew that there was a person inside the complainant's house at the time he broke and entered the house. 63 After the trial judge had answered one of these questions from the jury, the trial transcript at p 69 proceeds as follows:- "Foreman: One of the jury members has asked us to ask this on their behalf, they want advice if a person in a partly awake partly asleep state gives non-verbal bodily response indications, can that be taken as being consent to sex. His Honour: No. Foreman: Thank you. His Honour: It cannot be taken as consent because that person is not making a conscious, willing acceptance of the act. The relevance of that question, I daresay, is whether the other party can have a reasonable belief that it represents consent. Do you understand the distinction? Now, I may need to say more to you about that when I listen to counsel because it is not, I am not satisfied that I have answered that completely fully until I have had the chance to talk to them about it. So would you like to retire and I will bring you back and give you a complete answer in a moment". 64 Discussion then ensued between the trial judge and counsel, in the absence of the jury. Both the Crown prosecutor and counsel for the appellant submitted that the trial judge should re-direct the jury about recklessness and knowledge of absence of consent. Counsel for the appellant added at p 69:- "And I think, your Honour, when you spoke to them about it, sorry in your summing-up earlier on, when talking about that aspect, your Honour put in some words based, I think you used the word "based on" – if he had a belief based on reasonable grounds, in the context of the element of him knowing that she wasn't consenting. I think you said if he had a belief based on reasonable grounds that she was consenting then obviously they'd find him not guilty. It's my submission that because it's really only a subjective issue that it, in my submission it doesn't have to be based on anything. The fact is if they're not satisfied that he didn't have a genuine belief that she was consenting then they should find him not guilty even if that belief or the possibility that he did believe that she was consenting, wasn't in their view, based on reasonable grounds". 65 After counsel for the appellant had made this submission and had repeated the submission that the jury should be directed to look at only the subjective belief of the appellant, the trial judge said "yes, right". 66 The trial judge then gave the following further directions to the jury at pp 71-73 of the transcript of the summing-up:- "Right, now the question you asked was whether it could be construed as consent if a woman, in a sort of half awake condition, non-verbally reacted in such a way as to appear to accommodate sexual intercourse, or words to that I think, and I said 'no, that's not consent'. That's not consent for two reasons: it's not a conscious decision, willingly, to co-operate in an act of sexual intercourse and or, perhaps these are alternatives, it may be a co-operative state brought about by a belief, for example, that the sexual partner is somebody else. A mistake about the identity of the person with whom one is engaged in sex vitiates consent. There can be no consent to sex with the actual person if the apparent consent is brought about by this misunderstanding. So that's why it's not consent. The question that you framed. But the other question that I adverted to is really whether that may give rise to a belief on the part of the accused in this case that there was consent. There are two answers to that as well; or two reasons for the answer. You will remember that I told you that knowing that a person is not consenting can consist of actually knowing – I mean you may have asked and they have said 'no' so you know perfectly well that they are not consenting or it may consist of being reckless. Remember the law that I told you was that if a person has sexual intercourse with another without the consent of that person and if the offender is reckless as to whether that other person consents or not then they are taken to know that the person is not consenting. Now, recklessness is a factor to advert to in the question of whether the person is consenting or not. It does not have to be the product of conscious thought. If the offender does not even consider whether the woman is going to consent or not, then that is reckless and he is deemed to know that she is not consenting. If he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness. But it is his state of mind that you are obliged to consider and including in that is the concept I discussed with you yesterday about the fact that he had had something to drink, just how drunk he was, how much he had sobered up, how capable he was of making this decision and so on. In the end the Crown has to prove to you beyond reasonable doubt (a) that she was not consenting – and it relies on her evidence for that, that she did not consent to sex with this accused. There may have been a time when she was under a misapprehension that she was consenting to sex with somebody else or having sex with somebody else, a sort of dream state, but that is not consent, as I have already explained to you. So the Crown relies on her evidence to say that she was not consenting and the Crown suggests that you will be persuaded beyond reasonable doubt that he either knew, because he penetrated her before she woke up, or he was reckless in the sense that he did not even consider whether she was going to consent or not, or at least he recognised that there was a possibility that she may not consent but he went ahead and did it anyway and the accused case is that he thought she had consented, and he had this belief". 67 After giving these directions the trial judge asked, "anything else gentlemen?" and both counsel said "no". THE APPEAL AGAINST CONVICTION The only ground of appeal against conviction is:- The trial judge erred in his directions on recklessness . Submissions 68 It was submitted by counsel for the appellant that an issue of whether the Crown had established that the appellant knew that the complainant did not consent to sexual intercourse on the basis that the appellant was reckless as to whether the complainant was consenting, had been a real issue at the trial. In support of this submission counsel referred to evidence by the appellant and some of the other defence witnesses about demonstrations of affection by the complainant for the appellant on other occasions, evidence by the appellant and the complainant about previous visits by the appellant to the complainant's home, some evidence by the complainant that at the time of the sexual intercourse she was not asleep but in a semi-conscious state between being asleep and being fully awake, evidence that both the appellant and the complainant were, at least to some degree, intoxicated, evidence by the appellant that before the sexual intercourse took place there was some, even if brief, conversation between the appellant and the complainant, evidence by both the appellant and the complainant that there was no light on in the bedroom at the time of the sexual intercourse, the television having been turned off and the room light not being on, and evidence by the appellant, supported to some extent by evidence by the complainant, that when the complainant by words and acts made it quite clear that she was not consenting, the appellant desisted. 69 It was then submitted by counsel for the appellant that, because recklessness as to whether the complainant was consenting was a real issue at the trial, it had been necessary for the trial judge to give the jury directions about recklessness and that those directions should have been correct. 70 Counsel for the appellant contended that the direction given by the trial judge at p 72 of the transcript of the summing-up, that "if he is aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness" and the substantially similar direction given at pp 72-73 of the transcript of the summing-up, that "he was reckless in the sense that … he recognised that there was a possibility that she may not consent but he went ahead and did it anyway" were erroneous. It was contended that the mental state required for recklessness as to whether the complainant is consenting to sexual intercourse is not established by proof of an advertence by an accused person simply to the possibility of absence of consent on the part of the complainant. An awareness of the possibility of absence of consent would only constitute the mental state required for recklessness, where it is accompanied by a determination on the part of the accused person to engage in sexual intercourse with the complainant whether or not she is consenting, that is to say a determination by the accused person to engage in sexual intercourse with the complainant, not caring whether the complainant is consenting. 71 It was further submitted by counsel for the appellant that "as a matter of common sense" an accused person does not act recklessly, if he believes that the complainant is consenting to sexual intercourse, even though he is aware of the possibility that the complainant is not consenting. It was put that, if an accused person believes that it is overwhelmingly probable that the complainant is consenting but is aware that there is a slight chance, say a one percent chance, that she is not consenting, then surely the Crown should not be regarded as having succeeded in establishing that the accused knew that the complainant was not consenting. 72 Counsel for the appellant, while not suggesting that there was any authority which directly supported his submissions, referred to a number of cases including:- R v Murray (1987) 11 NSWLR 12; R v Daly [1968] VR 257; R v Sperotto (1970) 71 SR (NSW) 334; R v Zorad [1979] 2 NSWLR 764; R v Hemsley (1988) 36 A Crim R 334; R v Kitchener (1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660. Counsel referred particularly to the statement by the Full Court of the Supreme Court of Victoria in Daly at 259 and equivalent statements by the New South Wales Court of Criminal Appeal in Sperotto at 337 and in Zorad at 773 that "the Crown must establish beyond reasonable doubt that the accused either was aware that the woman was not consenting or else realised that she might not be and determined to have intercourse with her, whether she was consenting or not". 73 It was further submitted by counsel for the appellant that an accused person must be found not guilty, if it is at least reasonably possible that he believed that the complainant was consenting, even if that belief was not based on reasonable grounds. Counsel contended that the trial judge's directions at p27-28 of the summing-up, in which the trial judge used such expressions as the appellant having "no right to assume" and there being "no basis for any such belief" were misleading and that there was a danger that these expressions would have been understood by the jury as importing an objective element into the test of recklessness. The direction which counsel for the appellant at the trial had asked the trial judge to give (at p 69 of the transcript of the summing-up), that if the jury were not satisfied that the appellant did not have a genuine belief that the complainant was consenting, then the jury should find the appellant not guilty, even if the jury considered that any such belief would not have been based on reasonable grounds, would have been a correct direction and was a direction which the trial judge should have given, having regard to the possibly misleading expressions he had used earlier in the summing-up. The trial judge appeared to accede to counsel for the appellant's application that the direction be given, yet in the further directions which the trial judge gave he did not give the direction which had been applied for. 74 Counsel for the Crown on this appeal submitted that, on the evidence given at the trial, there was little scope for recklessness. It was submitted that, in any event, the directions which the trial judge gave were sufficient. It was put that an accused is reckless as to whether the complainant is consenting to sexual intercourse, if, having an actual awareness that the complainant might not be consenting, he proceeds to have sexual intercourse with her. An actual awareness that the complainant might not be consenting and the decision to proceed to have sexual intercourse with her, notwithstanding that awareness, amount to an indifference to whether the complainant is consenting or not. It was submitted by the Crown that the decision of the Court of Criminal Appeal in Hemsley strongly supported the correctness of the directions given by the trial judge concerning recklessness and that the directions given by the trial judge were not substantially different from the directions which had been approved in Daly , Sperotto and Zorad. 75 It was accepted by the Crown that, if it is at least reasonably possible that an accused believed that the complainant was consenting, he should be acquitted, whether or not there were any reasonable grounds for such a belief. However, it was submitted that the trial judge's directions had been sufficient to instruct the jury that, although the existence of grounds for the appellant forming a belief that the complainant was consenting might be relevant to whether the accused had, or might reasonably possibly have had, such a belief, what had ultimately to be proved by the Crown was an actual subjective state of mind of the accused. Decision 76 I accept counsel for the appellant's submission that recklessness was a real issue at the trial of the appellant and that it was necessary that the directions which the trial judge gave concerning recklessness and knowledge of absence of consent should have been correct. Even if recklessness had not been a real issue at the trial, the trial judge gave directions about recklessness and, those directions being given, it was important that those directions should have been correct. In Tolmie Kirby P observed at p 665 that, having regard to the issues at the trial in that case, the direction the trial judge had given about recklessness was unnecessary and it would have been preferable if it had not been given. However, his Honour continued:- "However, once given it was necessary that the direction should be made in accordance with the law, in case the jury might have acted upon it and been misled". 77 The Crown can, of course, prove the element of an offence under s 61I, that the accused knew that the complainant did not consent to the sexual intercourse, by proving that the accused had that knowledge. However, s 61R of the Crimes Act provides that a person 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. 78 It is now well settled "that, where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused's mental capacity, if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word 'reckless' in s 61R of the Crimes Act 1900" (per Kirby P in Tolmie at 672, citing inter alia R v Henning (NSWCCA 11 May 1990 unreported), R v Hemsley and R v Kitchener ). Although it is necessary to be cautious in using labels, such a form of recklessness can be described as "non-advertent" recklessness. In the present trial the trial judge gave directions about non-advertent recklessness. The trial judge told the jury that a person who does not even consider whether the other person is consenting or not to sexual intercourse is reckless as to whether the other person is consenting to sexual intercourse. No complaint was made on this appeal about the directions the trial judge gave about non-advertent recklessness. 79 Apart from non-advertent recklessness, it is clear that a person can be taken to know that the other person is not consenting to sexual intercourse by virtue of a kind of recklessness in which the first person has actually adverted to whether the other person is consenting to sexual intercourse. In my opinion, it is sufficient to constitute this kind of recklessness that the first person realises that the second person might not be consenting and, notwithstanding that realisation, decides to proceed to have sexual intercourse with her and has such sexual intercourse, without there being some additional, independent requirement that he is determined to have sexual intercourse with her, whether or not she is consenting. 80 This conclusion is strongly supported by the terms of the directions given by the trial judge in Hemsley and the decision of the Court of Criminal Appeal in that case that the ground of appeal that the trial judge had erred in his directions on recklessness should be rejected. In Hemsley the trial judge directed the jury as follows:- "You should remember we are considering the situation where the girl in fact did not consent . In such a situation, the man's state of mind at the time of the act of intercourse might be that he actually knew that she was not consenting. That is a guilty state of mind, and if the evidence satisfies you that that was the state of mind of the accused at the time of the act of intercourse, then the third element of the charge has been made out. On the other hand, the man's state of mind might be that he honestly, though wrongly, believed that the girl was consenting to intercourse. That is not a guilty state of mind. It is for the Crown to prove that the accused had a guilty mind, and so if as to either charge the Crown has failed to prove that at the time of intercourse the accused did not honestly believe that the girl was consenting, then in respect of that charge you would have to say that this third element of the offence is not made out and return, in respect of that charge, a verdict of not guilty. Between those two situations, on the one hand the knowledge that the girl does not consent and on the other hand an honest though mistaken belief that she does, there lies a third possible situation, where the man does not actually know either way but is reckless as to whether the girl is consenting or not: that is to say, his state of mind is such that he realises the possibility that she is not consenting but chooses to proceed to have intercourse notwithstanding. The law says that is a guilty state of mind. The law says that a man who is reckless as to whether the woman consents or not is deemed to know that she is not consenting, that is to say, he is to be treated as if he knows in fact that she does not consent. Therefore, if you are satisfied, as to either charge, that the state of mind of the accused was that he realised the possibility that DG was not consenting to intercourse, but went ahead notwithstanding, then the third element of that charge is made out". …… "On the second count, the Crown must prove first that in the farmhouse the accused had sexual intercourse with DG knowing what he was doing and intending to do it. Secondly, that she did not consent to that act of sexual intercourse and thirdly that he knew that she was not consenting or realised that she might not be consenting but went ahead regardless". 81 In these directions the trial judge in Hemsley directed the jury that the accused would have a guilty state of mind as being reckless as to consent, if "he realises the possibility that she is not consenting but chooses to proceed to have intercourse notwithstanding", if "he realised the possibility that (the complainant) was not consenting to intercourse, but went ahead notwithstanding" or if "he …. realised that she might not be consenting but went ahead regardless". All these formulations are substantially the same and are substantially the same as the directions Judge Freeman gave the jury in the present case, that "if he aware that there is a possibility that she is not consenting but he goes ahead anyway, that is recklessness" and "he recognised that there was a possibility that she may not consent but he went ahead and did it anyway". Recklessness consists in an accused actually realising that there is a possibility that the complainant is not consenting to sexual intercourse and, having that realisation, deciding to proceed to have sexual intercourse. In deciding to proceed to have sexual intercourse, having the awareness that the complainant might not be consenting, the accused decides to have sexual intercourse with the complainant, whether or not the complainant is consenting. 82 Counsel for the appellant sought to distinguish Hemsley . It was submitted that on the directions given by the trial judge in Hemsley the jury could not have convicted Hemsley, unless they were satisfied that the accused actually knew that the woman was not consenting. However, it is clear that in the directions given by the trial judge in Hemsley the three possible states of mind which the accused might have had were presented to the jury as alternatives and the jury could have found Hemsley guilty on the basis of being satisfied that he had the third state of mind, without being satisfied that he had the first state of mind, that is that he actually knew that the complainant was not consenting. 83 It was also submitted that the word "regardless" used in one of the directions in Hemsley was apt to incorporate the requirement that the accused should have been determined to have sexual intercourse with the complainant, whether or not she was consenting. However, the word "regardless" was used in only one of the formulations in the directions given by the trial judge in Hemsley and meant no more than "notwithstanding", which was the word used in the other two formulations, or "anyway" which was the word used by the trial judge in the present case. 84 Directions similar to those given in Hemsley and the present case were given by the trial judges in Kitchener and Tolmie . 85 In Kitchener the trial judge told the jury:- "The Crown has to prove beyond reasonable doubt that the accused at the relevant time of the intercourse foresaw at least the possibility that the girl was not consenting, but went ahead regardless, or he failed to avert (sic) at all to the question of whether she was consenting and just went ahead. In other words, he treated consent, as far as he was concerned, as entirely irrelevant. So there are two aspects I have just told you of in relation to that deemed knowledge coming from recklessness. It is foreseeing that leads to a possibility that she is not consenting, but going ahead regardless, or failing to even avert (sic) to the question in the situation in which he was and which he wanted" 86 In his judgment in the Court of Criminal Appeal Carruthers J, with whom the other members of the Court agreed, said, after quoting this part of the trial judge's summing-up:- "Thus the trial judge put the issue of consent to the jury on three bases: namely, that the appellant knew that the complainant was not consenting; that the appellant adverted to the possibility that the complainant was not consenting, but that he went ahead regardless of this possibility; and that the appellant failed to advert to the question of consent at all" 87 It is true that the appeal in Kitchener concerned that part of the directions given by the trial judge which related to failure to advert at all to the question of whether the complainant was consenting. However, it is of some significance that no member of the Court of Criminal Appeal expressed any disapproval of the direction that it would be sufficient for the Crown to prove that the accused adverted to the possibility that the complainant was not consenting but went ahead regardless of that possibility. This direction is indistinguishable from the direction which was given in the present case. 88 In Tolmie the trial judge told the jury:- "In order to establish that the accused was acting recklessly it must be proved beyond a reasonable doubt that he either realised the possibility that the girl was not consenting, but went on regardless or he simply failed to consider the question of whether or not she was consenting and just went ahead with the act of sexual intercourse". 89 In his judgment in Tolmie Kirby P summarised the argument by counsel for the appellant as follows:- "The appellant submitted that the trial judge erred in his initial direction as to recklessness by intending to embrace within that concept, situations where an accused is not specifically aware of the possibility that the complainant may not be consenting. In this respect, the appellant effectively sought to challenge the correctness of this Court's decision in R v Kitchener (1993) 29 NSWLR 696. The argument was that R v Kitchener , if it purported to incorporate notions of inadvertence or negligence into the mens rea of unlawful sexual intercourse, would be inconsistent with a central tenet of our criminal law – that a person should not be subject to serious criminal sanction for actions which they aren't proved to have intended. The appellant thus contended that the mental element of the crime must be, and has always been, that the accused either knew that consent was absent or knew that it might be absent, and nevertheless proceeded. The submission although not specifically put in this case, would presumably be that if proof of guilty intent, fundamental to our legal system, is to be taken away or modified then this should be done only by parliament and not by a judicial gloss on so fundamental a requirement of the criminal law". 90 As in Kitchener , the appeal in Tolmie related to the direction about non-advertent recklessness. However, it is of some significance that counsel for the appellant in Tolmie accepted the correctness of a direction of the kind given by the trial judge in the present case and that there is no suggestion in the judgments of the members of the Court of Criminal Appeal that this concession was wrongly made. 91 As regards the submission by counsel for the appellant that the accused should not be held to have acted recklessly, if he believed that probably the complainant was consenting to sexual intercourse, even though he was aware of the possibility that she was not consenting, this Court in Hemsley expressly held that it was not necessary for the Crown to prove that an accused realised the probability, as distinct from the possibility, that the victim was not consenting. 92 I would accept that, in order for an accused person to be liable on the basis of advertent recklessness, the possibility that the complainant is not consenting, of which the accused is aware, must be more than merely a bare possibility. In other areas of the criminal law where criminal liability depends on awareness or contemplation by an accused person of a possibility, it has been held that the possibility must have a certain degree of likelihood. See for example Miller v The Queen (1981) 55 ALJR 23 relating to the doctrine of common purpose and the recent decision of the Court of Criminal Appeal in R v Lavender [2004] NSWCCA 120 relating to manslaughter by criminal negligence, for example at (253) per Hulme J. However, if an accused person is aware of a real possibility that the complainant does not consent to sexual intercourse, he acts recklessly if, having that knowledge, he decides to proceed to have sexual intercourse, even if he considers it probable (although ex hypothesi not certain) that the complainant does consent to sexual intercourse. In the kind of extreme case postulated by counsel for the appellant, in which an accused believes that it is overwhelmingly probable that the complainant is consenting but is aware that there is a slight possibility, say a 1 per cent chance, that she is not consenting, then the possibility should be disregarded as being merely a bare possibility and not a real possibility. In the present case I do not consider that it was necessary for the trial judge to give any further directions about the nature of the possibility which the Crown would have to prove. 93 As I have already indicated, it was common ground on the hearing of the appeal that, if it was reasonably possible that the accused believed that the complainant was consenting, the accused would have to be acquitted, whether or not there were any reasonable grounds for such a belief ( DPP v Morgan [1976] AC 182). I accept that some of the expressions the trial judge used at pp 27-28 of the summing-up had the potential to be misleading, that it would have been prudent for the trial judge to have given the direction he was asked by counsel to give and that the trial judge did not in his further directions give such a direction. However, I have concluded that the directions the trial judge did give were sufficient to ensure that the jury had a correct understanding that it was not necessary that any belief the appellant had that the complainant was consenting should be based on reasonable grounds. The trial judge in his earlier directions did not in fact go so far as to say, as was suggested by counsel for the appellant at p 70 of the transcript, that it was necessary that any belief that the complainant was consenting be based on reasonable grounds. The trial judge would, of course, have been entitled to tell the jury that, in determining whether in fact the appellant had believed or might reasonably possibly have believed that the complainant was consenting, the jury could examine whether there would have been any grounds for such a belief. At pp 27-28 of the summing-up the trial judge, correctly, stressed that what the jury had to concentrate on was what was in the appellant's mind and not what might have been in the mind of the notional reasonable man. The trial judge further directed the jury that it would be relevant to take into account the extent to which the appellant was intoxicated and this direction would have reinforced the earlier direction that what the jury had to determine was the actual state of mind of the appellant. 94 In the further directions given at pp 71-73 of the transcript the trial judge again told the jury that "it is his state of mind that you are obliged to consider" and again referred to the possible effect of intoxication on the mental capacity of the appellant. The trial judge concluded the further directions by saying that "the accused's case is that he thought she had consented and he had this belief". In these further directions the trial judge did not say anything which would have suggested that a belief that the complainant was consenting would have to be based on reasonable grounds. At the conclusion of these further directions the trial judge asked counsel whether any other direction was sought and counsel for the appellant replied in the negative. 95 I would reject the only ground of appeal against conviction and I would dismiss the appeal against conviction. SENTENCE 96 The application for leave to appeal against sentence was not strongly pressed. 97 In his remarks on sentence Judge Freeman said that because the jury had found the appellant not guilty of an aggravated offence under s 112(2) of the Crimes Act , he could not in sentencing the appellant make any finding that the appellant had entered the complainant's house with the intention of sexually assaulting her. However, his Honour considered that the jury's verdict of not guilty of the aggravated offence did not preclude him from finding that the appellant had otherwise acted as the Crown had asserted he had acted. Judge Freeman made the following findings of fact:- "I find the offender positioned a chair outside the toilet window at the rear of the victim's house. Standing on this chair he dislodged the length of dowel which had been positioned to secure the partially-opened window and prevent it from being further opened. This dislodgment must have required some degree of forced manipulation. The offender then threw or dropped the dowel rod down beside the chair and, opening the window wider, he slid through, leaving his palm prints on the window frame and the sides of the toilet seat. The victim was asleep in her bed, unclothed as was her habit, with the television set at the foot of her bed on. I find the offender entered the bedroom, removed his clothes, placed his clothes at the foot of the bed and his spectacles on the television set, which he turned off. He did this to extinguish the only light source in the room. The offender then penetrated the sleeping victim. I think it probable that she roused to a certain extent, to what she described as a dreamlike state, in the mistaken belief that she was receiving her then partner. The time during which this state lasted is indeterminate. It could not have been long. As soon as the victim reached up to the head of the man she believed was her partner she registered the fact that it was the offender who was on top of her. She immediately told him to stop. He did. She told him, I accept, that she could not believe that he had done this to her and that he was to leave immediately. He did. I am satisfied, in other words, that the initial penetration was effected whilst the victim was asleep and that during the brief period during which she may have appeared compliant was not therefore any basis on which the offender could have formed legitimately a belief that she was consenting to intercourse with him". 98 In his remarks on sentence Judge Freeman observed that he was sentencing the appellant for a sort of compound crime under s 112(1) and s 61I of the Crimes Act . His Honour decided that he should sentence the appellant "basically for the sexual assault", which was aggravated by the circumstances that the assault had been committed in the complainant's home into which the appellant had broken and that the assault had been committed on a sleeping woman. His Honour found that circumstances that tended to mitigate to some extent the objective seriousness of the offence were that there was no violence beyond the penetration of the complainant by the appellant, that the appellant did not make any threats, that the appellant's capacity to form judgments might have been diminished by his being intoxicated and that the appellant desisted, "when directed". 99 Judge Freeman took into account some favourable subjective circumstances of the appellant, including that he had only one previous criminal offence, which was of a different kind, that the offence was out of character and that at a vulnerable age in his adolescence the appellant had learned that a man that he had treated as his natural father was only his step-father. 100 Judge Freeman declined to give the appellant any discount for the earlier plea of guilty which Judge Hosking had rejected. His Honour commented that the rejection of the plea of guilty had been a proper course for Judge Hosking to take, having regard to the evidence the appellant had given in the proceedings on sentence before Judge Hosking, but this evidence had turned out to be false. 101 Judge Freeman found that the appellant lacked insight into the offence he had committed and that there was a moderate risk of the appellant re-offending. His Honour also found that the appellant had a problem with binge drinking of alcohol and found special circumstances because of the need for the appellant to undergo programmes which would deal with the risk of his re-offending and the risk of his continuing to abuse alcohol. 102 In very brief written submissions for the appellant in support of the application for leave to appeal against sentence, it was pointed out that the appellant had desisted when asked by the complainant to stop and had not made any threats against the complainant and that the appellant had no relevant criminal history. All of these matters were taken into account by Judge Freeman in his remarks on sentence and I do not consider that any error has been demonstrated in the exercise by his Honour of his sentencing discretion. While I would be prepared to grant leave to appeal against the sentence imposed by Judge Freeman, I would dismiss the appeal against sentence. CONCLUSION 103 In my opinion the appeal against conviction should be dismissed and that, although leave should be granted to appeal against the sentence imposed by Judge Freeman, the appeal against sentence should be dismissed. 104 KIRBY J : I agree with James J. ********** Last Modified: 08/06/2004 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.