Beattie v R

1. [1]

   JOHNSON J: By Notice of Appeal filed on 22 September 2020, the Appellant, Joshua Henry Beattie, appealed against his conviction by a jury at the Sydney District Court on 6 March 2020 upon a charge of having sexual intercourse without consent, knowing that the complainant was not consenting, contrary to s.61I Crimes Act 1900.

Appeal Against Conviction Prior to Sentencing

1. [2]

   The Appellant stood trial before his Honour Judge Mahony SC and a jury upon two counts, each of which alleged that between 25 May 2018 and 26 May 2018 at [location] in the State of New South Wales, he did have sexual intercourse with the complainant without her consent, knowing that she was not consenting contrary to s.61I Crimes Act 1900.

2. [3]

   At the conclusion of the trial, the jury returned a verdict of guilty on Count 1, but could not reach a verdict on Count 2 so that the jury was discharged on that count.

3. [4]

   The trial of the Appellant on Count 2 has been fixed to proceed at the Sydney District Court on 22 February 2021.

4. [5]

   The Appellant has not been sentenced for the offence for which he was convicted by the jury. In circumstances where the Appellant had appealed against conviction to this Court, the presiding Judge determined not to proceed to sentence. It was the agreed position between the Crown and counsel for the Appellant that, if the conviction appeal succeeded, a retrial of the Appellant on Count 1 could proceed as part of the trial for Count 2 already fixed to commence on 22 February 2021.

5. [6]

   It is open to the Court to entertain an appeal against conviction before sentence is passed: Tonari v R (2013) 237 A Crim R 490; [2013] NSWCCA 232 at [3]. Although, as observed in Tonari v R at [5], whilst this approach to the hearing and determination of conviction appeals is not to be encouraged, it constituted an understandable approach in the circumstances of this case.

Hearing of the Appeal

1. [7]

   The hearing of the appeal proceeded before this Court on 26 November 2020. The written submissions furnished for the Crown acknowledged that erroneous directions had been given to the jury so that a proper foundation had been established for the Court to allow the appeal, quash the conviction and direct a retrial.

2. [8]

   The Court was satisfied that error had been demonstrated by the Appellant and that the proper course was to allow the appeal and order a new trial. Accordingly, the Court made the following orders:

3. [9]

   It was the understanding of the Court that the retrial of the Appellant on Count 1 would take place on 22 February 2021 with the Appellant to be indicted upon Counts 1 and 2 in the same way as he had been at the commencement of the trial which concluded on 6 March 2020.

4. [10]

   The Court indicated that reasons for making these orders would be published at a later time.

5. [11]

   My reasons for joining in the orders made on 26 November 2020 are contained in this judgment.

A Short Overview of the Trial

1. [12]

   The alleged offences were said to have been committed against the complainant as part of a single course of conduct early in the morning of Saturday, 26 May 2018.

2. [13]

   The Appellant and the complainant were amongst a group of university student friends attending a party at a house in Sydney on the night of Friday, 25 May 2018.

3. [14]

   The complainant had arrived at the party with another friend at about 7.00 pm or 8.00 pm. Thereafter, she consumed a considerable amount of alcohol and became intoxicated. The complainant had a nascent relationship with a male student at the party with whom she had previously had sexual intercourse on two occasions. In the course of the evening, the complainant engaged in some intimate kissing with this male friend and expressed her wish to him (and to some other friends at the party) that she would like him to come to her bed that night. The male friend declined, confirming his romantic interest in the complainant, but indicating that she was too drunk and that they should wait for another occasion.

4. [15]

   At some stage later that evening, the intoxicated complainant went to an upstairs bedroom in the house where the party was held and fell asleep in a loft bed in that room.

5. [16]

   Thereafter, the Appellant went to the bedroom in which the complainant was sleeping. He slept for some time in the bed with her, but later awoke, engaging in some kissing of the complainant and then performing cunnilingus on her (Count 1) before engaging in unprotected penile/vaginal sexual intercourse during which he ejaculated (Count 2).

6. [17]

   At about 5.45 am on 26 May 2018, the alarm on the complainant’s mobile phone went off. When the light in the room was turned on, the complainant saw the Appellant. She complained immediately that she had thought that the person with whom she had engaged in sexual acts was her other male friend and not the Appellant. The complainant immediately raised the alarm with her friends as to what had happened and made a complaint to police within 24 hours.

7. [18]

   The Appellant was arrested and charged with the offences on 11 December 2018.

8. [19]

   The Appellant gave evidence at the trial and said that, when he got into bed, he was not aware that another person was present. He said that he woke up and felt an arm around him and began kissing that person and realised that it was the complainant. He said that he asked the complainant if she had a condom and that her response was “It’s OK, it’s alright”.

9. [20]

   On 6 March 2020, the jury found the Appellant guilty of Count 1 (oral intercourse), but was unable to reach either a unanimous or a majority verdict on Count 2 (penile/vaginal intercourse).

Grounds of Appeal

1. [21]

   The Appellant relies upon the following grounds of appeal:

The Way in Which the Crown Put its Case at the Trial

1. [22]

   Given the grounds of appeal raised, it is helpful to note the way the Crown Prosecutor put the Crown case at trial. In opening to the jury, the Crown Prosecutor said (T21-22, 24 February 2020):

2. [23]

   The closing address of the Crown Prosecutor to the jury included the following (T257-258, 2 March 2020):

The Crown and Defence Cases at Trial

1. [24]

   The Crown case at trial was that the Appellant entered the loft bed in the early hours of the morning. The complainant was substantially affected by alcohol and had oral then penile/vaginal sex with the Appellant believing him to be her male friend. The male friend was also at the party and was a person with whom the complainant had previously had sex and with whom she was in the nascent stages of a relationship.

2. [25]

   The defence case at trial was that, at the time of the sexual intercourse, the complainant was not substantially intoxicated and was well aware that it was the Appellant with whom she was having sex. Further, it was the defence case that the Appellant did not know (if it was the case) that the complainant was not consenting to the intercourse.

3. [26]

   It may be seen from the extracts of the Crown opening and closing addresses to the jury that, although the Crown stated that the complainant had been quite intoxicated and that she was not fully awake at the commencement of the encounter, the Crown case was advanced mainly on the basis that the complainant had consented to (or acquiesced in) the sexual intercourse under a mistaken belief as to the identity of the Appellant as she had believed he was in fact her male friend.

4. [27]

   There were other features emphasised during the Crown case, and in cross-examination of the Appellant, which made it clear that this was the central theme of the Crown case. These included:

Prior Discussion Concerning Directions to be Given to the Jury

1. [28]

   During the course of the final day of evidence on Friday 28 February 2020, the trial Judge informed counsel that he would have a number of draft directions for them to peruse over the weekend. His Honour noted that the Crown “didn’t open on recklessness and the draft does not include any reference to recklessness” (T246.17).

2. [29]

   At the end of proceedings on 28 February 2020, his Honour provided a bundle of draft directions (MFI9) to counsel for their consideration (T253).

3. [30]

   Closing addresses by the Crown Prosecutor and defence counsel proceeded on Monday 2 March 2020 and concluded just before the luncheon adjournment (T257ff).

Directions to Jury During Summing Up

1. [31]

   His Honour summed up to the jury on the afternoon of 2 March 2020. In the course of the summing up, written directions were distributed to the jury in the form which had been provided to counsel on 28 February 2020 (MFI9).

2. [32]

   The elements of the offences in Counts 1 and 2 were described in the following way:

3. [33]

   The written directions explained “consent” in the following way:

4. [34]

   His Honour gave further written directions to the jury concerning “consent” and “knowledge” (my emphasis):

5. [35]

   When the point was reached in the summing up for the written directions to be provided to the jury, his Honour said (SU11):

6. [36]

   The written directions were then distributed to the jury and his Honour then took the jury through the documents (SU11-16) during which he repeated what was said in the written directions concerning consent and knowledge. His Honour concluded his summing up, with the jury retiring to consider its verdicts at 3.16 pm on 2 March 2020.

Responses to Jury Questions

1. [37]

   The jury continued its deliberations on 3 March 2020 and 4 March 2020 and, at 9.40 am on 4 March 2020, his Honour received a note from the jury containing seven questions on a range of issues including consent (MFI11). The questions were as follows:

2. [38]

   The trial Judge discussed with counsel the questions in the absence of the jury, but his Honour did not set out his proposed answers in this discussion (SU40-42).

3. [39]

   When the jury returned to Court, the trial Judge gave the following further directions in response to the jury’s questions (SU43-48) (my emphasis):

4. [40]

   The jury left the courtroom and trial counsel for the Appellant raised concerns with respect to the directions given to the jury concerning substantial intoxication. Reference was made to s.61HE Crimes Act 1900 which his Honour had utilised for the purpose of framing the directions. As the incidents giving rise to the charges occurred prior to 1 December 2018, the applicable provision was s.61HA Crimes Act 1900, which was in similar but not identical terms to s.61HE. Section 61HE has applied since the commencement of the relevant provision in the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 on 1 December 2018. Section 61HA is reproduced later in this judgment (at [50]) with points of distinction between s.61HA and s.61HE being noted as well (at [51]-[52]).

5. [41]

   Trial counsel for the appellant said in respect of the trial Judge’s directions (SU48-50) (my emphasis):

6. [42]

   In light of the trial Judge’s ruling, the jury were informed that they could continue their deliberations.

7. [43]

   At 12.46 pm on 4 March 2020, the jury sent a note indicating that they “are not unanimous on either charge” (MFI12). After discussion with trial counsel, his Honour gave a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 (SU51-53).

8. [44]

   The jury continued deliberations for the balance of 4 March 2020 and, at 11.00 am on 5 March 2020, a further jury note was provided which contained the following questions (MFI13) (my emphasis):

9. [45]

   After discussion with counsel, the jury returned to Court and his Honour responded to their questions in the following way (SU56-58) (my emphasis):

10. [46]

    The jury retired to further consider its verdicts at 11.28 am on 5 March 2020. Later that day, his Honour gave the jury a majority verdict direction after complying with the necessary preconditions in that respect for the purpose of the Jury Act 1977.

11. [47]

    The jury continued its deliberations on 5 March 2020 and, on 6 March 2020, returned a majority verdict of guilty on Count 1. His Honour discharged the jury without verdict on Count 2 upon the basis that a majority or unanimous verdict could not be reached on that count.

Section 61HA Crimes Act 1900

1. [48]

   It is appropriate to set out the terms of s.61HA Crimes Act 1900, as it existed prior to 1 December 2018, which applied to the trial of the Appellant.

2. [49]

   It is unfortunate that reference was made during the trial to s.61HE Crimes Act 1900 which did not commence until 1 December 2018. There are differences between the old s.61HA and the current s.61HE.

3. [50]

   Section 61HA provided as follows:

4. [51]

   For comparative purposes, it is useful to set out s.61HE, the successor provision to s.61HA. Section 61HE provides as follows:

5. [52]

   It will be seen that the differences between the two sections include the following:

6. [53]

   It will be seen that there are similarities and differences between the old s.61HA and its successor in s.61HE so that care is required to direct attention to the applicable provision.

Ground 1 - Misdirection on Substantial Intoxication Concerning the Complainant’s Capacity to Consent

1. [54]

   As noted earlier (at [41]), the trial Judge refused an application by the Appellant’s trial counsel to redirect the jury on the subject matter of the first ground of appeal. Accordingly, the Appellant does not require leave under Rule 4 Criminal Appeal Rules to rely on this ground.

2. [55]

   Mr Smith, counsel for the Appellant, submitted that the written elements document did not comply with s.61HA(6)(a) in that the section stated that substantial intoxication “may” negate consent, but the written direction stated that it “would” negate consent. It was submitted that the three paragraphs of the written directions concerning intoxication (at [34] above) were apt to confuse the jury in that the second and third emphasised paragraphs stated contradictory things.

3. [56]

   Counsel observed that, in oral directions, the trial Judge stated that the words “substantially intoxicated” are “ordinary English words that ought be given their ordinary English meaning” (SU15).

4. [57]

   Mr Smith referred to Questions 4 and 5 as posed by the jury during deliberations (see [37] above). It was submitted that Questions 4 and 5 indicated a level of confusion as to the effect of intoxication on consent. It was submitted that trial counsel for the Appellant had made an appropriate application for a redirection having heard the responses given by the trial Judge to Questions 4 and 5. He submitted that the further oral direction given by the trial Judge was erroneous in that it stated that “consent is negated” if the person is substantially intoxicated. It was submitted that his Honour erred, as well, in the answer to Question 5 which raised the same topic and directed the jury that “the level of intoxication that negates consent is substantial intoxication”.

5. [58]

   It was submitted that the direct answer to the jury on Question 5 was clearly wrong and did not accord with s.61HA(6)(a) Crimes Act 1900.

6. [59]

   Counsel for the Appellant submitted that trial counsel had sought to raise the issue with his Honour in the absence of the jury, but that his Honour declined to redirect the jury upon the basis that the third emphasised paragraph of the written directions concerning intoxication qualified the erroneous aspect of the direction (SU49).

7. [60]

   Mr Smith submitted that the answer to Question 5 was the last direction given to the jury on the issue of intoxication before the verdict was delivered on Count 1 and that the direction was erroneous in its terms.

8. [61]

   Counsel submitted that at no time was the jury given directions on substantial intoxication that were in accordance with the law.

9. [62]

   The Crown submitted that it is possible for the Crown, in a matter such as this, to put its case firstly on the basis of an actual lack of consent and, in the alternative, a lack of consent based upon a mistaken belief as to the identity of the other person. Reliance was placed in this respect upon Bochkov v R [2009] NSWCCA 166 where Giles JA (Buddin and Harrison JJ agreeing) said at [30]-[34] (referring to the applicable provision of the Crimes Act 1900):

10. [63]

    It was submitted that, in the present case, using the references to pathways in Bockhov v R, the intoxication of the complainant (in combination with sleepiness) could have formed the basis for the complainant’s lack of consent on the first pathway and/or otherwise could have been relevant to the complainant’s mistake under the second pathway.

11. [64]

    Whilst it does not appear to be the case that the first pathway was advanced on the basis of substantial intoxication alone (given the nature of the complainant’s evidence at trial), the Crown submitted that, for present purposes, the Appellant appears to accept that the first pathway was a live issue at trial and that the complainant’s level of intoxication was a relevant issue so that the direction on substantial intoxication could be given.

12. [65]

    The Crown noted that the Appellant’s complaint under the first ground of appeal was that the direction conflated substantial intoxication with the grounds vitiating consent under s.61HA(4)(b) being sleep and unconsciousness.

13. [66]

    The Crown referred to the trial Judge’s answers to the seven questions posed by the jury and observed that the Appellant relies, in particular, upon what his Honour said with respect to Questions 4 and 5. It was submitted that the trial Judge’s response to the questions was qualified and made clear that substantial intoxication, if established, did not necessarily negate consent, but was a relevant factor to be considered.

14. [67]

    The Crown relied upon Tabbah v R [2017] NSWCCA 55, where Button J (Hoeben CJ at CL and Payne JA agreeing) said with respect to s.61HA (at [140]-[144]) (my emphasis):

15. [68]

    The Crown submitted that, although part of his Honour’s direction to the jury in the present case was expressed in absolute terms, taken as a whole it was sufficiently clear that substantial intoxication did not necessarily mean that consent was negated and accordingly there was no error of law.

16. [69]

    If this Court formed a contrary view, the Crown accepted that the ground should be upheld and that the appropriate order would be for a retrial with no reliance being placed upon the proviso in s.6(1) Criminal Appeal Act 1912.

17. [70]

    I am satisfied that the issue of intoxication of the complainant arose sufficiently at the trial to call for an appropriate direction to be given with respect to substantial intoxication in accordance with s.61HA(6)(a) Crimes Act 1900.

18. [71]

    Parts of the written and oral directions on substantial intoxication given by the trial Judge were inaccurate in that they suggested that substantial intoxication negated consent rather than it being a factor which the jury may take into account for the purpose of determining whether consent was negated. There was, at the least, an element of confusion in the directions given on this issue. Perhaps belatedly, trial counsel for the Appellant sought a redirection to clarify this issue, but his Honour declined to give a further direction (see [40] above).

19. [72]

    I do not consider that the Crown is assisted by what was said in Tabbah v R. In that case, although an element of confusion had been introduced with respect to the relevant legal concepts in the addresses of counsel, it was held that the directions of the trial Judge were perfectly correct: Tabbah v R at [145]-[146]. In the present case, erroneous and confusing directions were given to the jury on the topic of substantial intoxication.

20. [73]

    In the present case, there is at least a real risk that one or more members of the jury misunderstood the direction given with respect to substantial intoxication which was an issue of some significance in the circumstances of this trial.

21. [74]

    I am satisfied that error has been demonstrated in accordance with the first ground of appeal.

22. [75]

    The Crown submission that, if the Court found error, reliance would not be placed upon the proviso was both understandable and appropriate.

23. [76]

    I uphold the first ground of appeal.

Ground 2 - Misdirection Concerning Knowledge of Lack of Consent as an Element of the Offence

1. [77]

   It was common ground between counsel for the Appellant and the Crown that the matter complained of under the second ground of appeal was not the subject of any application for redirection by trial counsel for the Appellant. Accordingly, the Appellant requires leave under Rule 4 Criminal Appeal Rules to rely upon this ground.

2. [78]

   Mr Smith submitted that the Crown case against the Appellant rested on two limbs. The first was that the complainant was substantially intoxicated at the time of the sexual intercourse and the second was that she had consented to each act of sexual intercourse, but under a mistaken belief as to the identity of the person with whom she was having sex.

3. [79]

   Counsel submitted that at no point in the written directions on the elements, nor in the original oral directions, was the jury directed in accordance with s.61HA(5)(a) Crimes Act 1900. It was submitted that the jury should have been directed expressly that, if the complainant consented to having sexual intercourse with the Appellant under the mistaken belief that she was having sex with another person, then she did not consent. Counsel acknowledged that this was an omission which operated in the Appellant’s favour.

4. [80]

   However, counsel referred to the jury note concerning mistaken identity sent on 5 March 2020 (see [44] above). The trial Judge answered the first question correctly in the negative: s.61HA(5)(a). However, his Honour went on immediately to direct the jury that “The Crown asks you to infer or conclude from all the facts which it set out to prove that the accused must have known and that he did, indeed, know that [the complainant] did not consent as she was intoxicated at the time”.

5. [81]

   Mr Smith submitted that the direction was wrong in law for two reasons. Firstly, knowledge of intoxication did not automatically equate to knowledge of lack of consent. Secondly, in order for the Appellant to be convicted on the basis of s.61HA(5)(a), the relevant state of mind was that the Appellant knew that the person consented under a mistaken belief as to identity: s.61HA(3) and (5). The jury was never directed to that effect.

6. [82]

   Counsel submitted that the only direction given to the jury as to the requisite state of mind in the case of mistaken identity was wrong and that at no stage was the jury informed correctly of the state of mind that the Crown was required to prove beyond reasonable doubt.

7. [83]

   It was submitted that leave should be granted to the Appellant under Rule 4 to rely upon this ground and that the ground should be upheld.

8. [84]

   The Crown acknowledged that, whilst the Crown case may have been advanced on both of the pathways identified in Bochkov v R, it was clear from the Crown opening and closing addresses that the central thrust of the Crown case was that the complainant had been mistaken as to the identity of the person in her bed and that the Appellant had knowingly taken advantage of this situation.

9. [85]

   The Crown noted that the Appellant’s case was that he had consensual sexual intercourse with the complainant, that there was nothing to indicate to him other than it was consensual and that, in the alternative, even if the jury accepted that the complainant had made a “terrible mistake”, the jury would not accept beyond reasonable doubt that the Appellant knew that this was the case (Defence closing address, T296).

10. [86]

    The Crown noted that no directions were either sought nor given in relation to mistaken identity vitiating consent and the corresponding mental element which the Crown had to prove in order to establish guilt under that pathway. The Crown referred to the jury questions asked on 5 March 2020, which indicated that the jury was alert to both the issue of the complainant’s consent in the context of mistaken identity as well as the corresponding mental state of the Appellant which the Crown was required to prove.

11. [87]

    After referring to the trial Judge’s answers to those questions (SU56-57) (see [45] above), the Crown submitted that the jury should have been directed according to the two pathways to guilt identified in Bochkov v R and that proof that the Appellant knew that the complainant did not consent depended on the basis upon which absence of consent was proved.

12. [88]

    In relation to the second pathway (mistaken identity), the Crown submitted that the jury should have been directed that the mental element which the Crown had to prove was knowledge that the complainant had consented under a mistaken belief as to the identity of the Appellant and that otherwise she would not have consented to sexual intercourse with him. The Crown conceded that it was an error for the trial Judge not to have given a direction in these terms.

13. [89]

    The Crown acknowledged that a further vice in the manner in which the directions had been left to the jury was that, although recklessness appears to have been abandoned, the jury was directed on the “no reasonable grounds for belief” basis for knowledge and could have applied this reasoning to the issue of mistaken identity.

14. [90]

    The Crown drew attention to the decision of the High Court of Australia in Gillard v The Queen (2014) 88 ALJR 606; [2014] HCA 16 which concerned legislation of the Australian Capital Territory in substantially similar terms to the New South Wales legislation at the time of the offences. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ) made clear (at [28]-[29]) that the Crown must prove that the accused actually knew the other person only consented to sexual intercourse on the ground of vitiation relied upon, namely mistaken identity, and that recklessness will not suffice. The Crown submitted that, although the decision in Gillard v The Queen only dealt with recklessness, it would follow logically that “no reasonable grounds for belief” would also be insufficient to establish the mental element.

15. [91]

    The Crown noted that, whilst no redirection was sought at trial, the error under the second ground of appeal appears to have been a serious misdirection affecting the elements of the offences so that there is a risk that the conviction on Count 1 involves a substantial miscarriage of justice. In those circumstances, the Crown did not submit that Rule 4 should apply to prevent the Appellant relying upon the second ground of appeal.

16. [92]

    Once again, the Crown indicated that, if the second ground of appeal was upheld, reliance would not be placed on the proviso in this case.

17. [93]

    The resolution of the second ground of appeal has been assisted greatly by the thoughtful, balanced and accurate conclusion expressed by the Crown in written submissions prepared for the appeal.

18. [94]

    The question of mistaken identity was a very live issue at the trial of the Appellant. I am satisfied that the jury was not given directions in accordance with law on that issue at the trial. The jury was conscious of the significance of the issue leading to questions asked to which his Honour responded without further complaint by counsel appearing at the trial.

19. [95]

    As Button J observed in Tabbah v R at [140] (see [67] above), s.61HA “as a whole is an unusual amalgam of concepts”. The same observation applies to the current provisions in s.61HE Crimes Act 1900. The concept of “mistaken belief” is referred to in s.61HA(5)(a) and the final sentence in s.61HA(5), with the later provision relating back to s.61HA(3). The directions given to the jury at the present trial did not meet the legal requirements laid down in s.61HA. It must be said that his Honour did not receive assistance from trial counsel on this issue.

20. [96]

    I am satisfied that the issue raised by the second ground of appeal involved a serious misdirection on an important issue at the trial so that there is a risk that the conviction on Count 1 involves a substantial miscarriage of justice. In these circumstances, the Appellant should be granted leave under Rule 4 to rely upon the second ground of appeal.

21. [97]

    I uphold the second ground of appeal.

Conclusion

1. [98]

   The Appellant has made good each of his grounds of appeal.

2. [99]

   The appropriate order is that a retrial on Count 1 should take place. I observe that there is a considerable advantage to the administration of criminal justice where the retrial on Count 1 will proceed at the trial already fixed at the Sydney District Court on 22 February 2021 with respect to Count 2.

3. [100]

   It was for these reasons that I joined in the making of the orders at the conclusion of the hearing in this Court on 26 November 2020.

4. [101]

   R A HULME J: I joined in the making of the orders on 26 November 2020 for the reasons provided by Johnson J.

5. [102]

   WILSON J: I too joined in the orders of the Court of 26 November 2020 for the reasons given by Johnson J.