Smee v R

1. [1]

   MITCHELMORE JA: I agree with Kirk JA.

2. [2]

   KIRK JA: Section 61HE of the Crimes Act 1900 (NSW), as it stood from 1 December 2018 until 31 May 2022, made somewhat confusing provision with respect to how the fact that a complainant was substantially intoxicated was relevant to whether or not they consented to sexual activity. In this matter the effect of the section was not correctly explained to a jury by the trial judge.

3. [3]

   The applicant was charged with two counts of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900 (NSW), relating to events on 14 April 2019. At the time he was 18 years old. The complainant was 15. Count 1 involved an allegation of fellatio and count 2 an allegation of cunnilingus. He was tried before a jury and Bennett DCJ in the District Court. He was found not guilty of count 1 but guilty of count 2. On 14 December 2023 the trial judge sentenced him to a three year term of imprisonment, commencing from that date, with an 18 month non-parole period.

4. [4]

   It is unnecessary to recite the facts of the case in any detail. On the day in question the complainant met up with a school friend, G, in the afternoon. The two of them commenced drinking vodka. At around 7pm they went to meet the applicant and a male friend of his, B, who was 16 years old. B and G were already acquainted; the others were not. The two females continued drinking, consuming a significant amount of vodka. The males drank little. At some stage the four of them played a game of “spin the bottle”, after which the group broke up into pairs, B and G on the one hand and the applicant and complainant on the other. It was not in dispute that an act of fellatio and of cunnilingus occurred between the applicant and complainant. That was established – in substance, only established – by what the applicant said in an interview he gave to the police 13 months after the events. He told the police, too, that she had said to him during the course of their encounter “put it in” – suggesting penile-vaginal intercourse – but he refused, saying “you’re too drunk”. The complainant herself had very limited recollection of the events in question due to her state of intoxication. She did have a recollection that she had said “get it in”, and probably did not say “no”. The complainant ended up becoming unresponsive and an ambulance was called. Expert evidence was led as to her state of intoxication. It was not part of the Crown case that the complainant was unconscious or asleep at the time of the sexual activity such that she was unable to consent.

5. [5]

   At the trial there were two key issues: whether the complainant had consented in the relevant legal sense, and the applicant’s state of knowledge as to her claimed lack of consent. Given the nature of the charge, it was not suggested that the question of consent did not arise given the complainant’s age. It is the former issue of consent which is central to the appeal. That issue requires consideration of s 61HE of the Crimes Act as it stood at the time. The provision is not a model of drafting.

6. [6]

   The applicant’s sole ground of appeal is that the trial judge misdirected the jury in relation to the issue of substantial intoxication and consent. That ground is made out. The applicant should be given leave to appeal (to the extent required) with the appeal being upheld. Any bail application the applicant may wish to make as a consequence of this appeal will be a matter, in the first instance, for the District Court.

7. [7]

   In what follows I will first address the terms and effect of s 61HE then examine the impugned directions given to the jury.

Section 61HE

1. [8]

   The section relevantly provided as follows:

2. [9]

   Subsection (2) defines the meaning of consent for the purposes of the sections to which the provision applies, namely that “the person freely and voluntarily agrees to the sexual activity”. Subsections (5) and (6) qualify that definition by indicating particular situations where the person is taken to “not consent”. If one of those grounds is made out then the person is taken not to consent regardless of what they said or did, and without further consideration of whether they can be said to have freely and voluntarily agreed to the sexual activity.

3. [10]

   Subsection (8) is not expressed in the same terms. The chapeau refers to “grounds on which it may be established that a person does not consent to a sexual activity” (emphasis added). Thus, in contrast to subss (5) and (6), making out one of the grounds in subs (8) does not of itself mean that the person will be concluded not to have consented. Confusingly, as regards intoxication, the section provides that it may be established that the person does not consent if they consent while substantially intoxicated by alcohol or any drug. Subsection (8) presumes that the person has consented but provides that that may be taken not to be consent. This would be coherent if the provision had the automatic effect of overriding any issue of free and voluntary agreement, in the way that subss (5) and (6) do. But subs (8) does not operate in that way, at least for paragraph (a), given the use of the words “may be” in the chapeau.

4. [11]

   Extrinsic materials throw no light on this issue. Section 61HE was one of a number of provisions relating to sexual offences introduced by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). The section applied from 1 December 2018 until it and related provisions were replaced by ss 61HF-61HK from 1 June 2022. Attorney General Speakman did not address the meaning or significance of s 61HE in his second reading speech introducing the 2018 amending Act but said that the definition of consent “has not changed”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 at 7.

5. [12]

   Prior to 1 December 2018 the issue of consent had been addressed in s 61HA of the Crimes Act. In fact, the terms of that provision were similar but not identical to s 61HE, as was explained in Beattie v R [2020] NSWCCA 334; (2020) 287 A Crim R 287 at [49]-[53]. That section had been introduced by the Crimes Amendment (Consent—Sexual Assault Offences) Act 2007 (NSW), with effect from 1 January 2008. Similar tension existed in that section as in s 61HE, albeit not in quite such stark terms as that provision did not refer to the person having consented. The second reading speech of Attorney General Hatzistergos threw no particular light on the provision: New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 November 2007 from 3584.

6. [13]

   Since 1 June 2022 the issue has been addressed more simply in the Crimes Act. Pursuant to s 61HJ(1)(c), a person “does not consent to a sexual activity if … the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual activity”.

7. [14]

   The way to reconcile the tension inherent in s 61HE(8) – and focusing only on the issue of substantial intoxication as addressed in paragraph (a) – is as follows. Where it is established that the person in question was substantially intoxicated at the time they said or did something to indicate consent then those words and actions will not necessarily show consent, where otherwise they might do so. The question is whether it is established that the person did not freely and voluntarily agree to the sexual activity, taking account of all the circumstances, including what the person said or did along with the fact that they were substantially intoxicated at the time. The fact that the person was substantially intoxicated does not suffice of itself to establish a lack of consent. A substantially intoxicated person can still be taken to freely and voluntarily agree to a sexual activity. Whether or not they did so is a question of fact assessed in all the circumstances.

8. [15]

   Counsel for the applicant suggested that the issue involves showing that the substantial intoxication had a causative effect which led to what was said or done to indicate consent: in other words, that the section requires that what the person said or did to indicate consent was because they were substantially intoxicated. That suggestion is incorrect, as the Crown accepted. It overcomplicates matters. It is not supported by the text. Paragraph (a) of subs (8) does not use language of causation, in contrast to the word “because” used in paragraphs (b) and (c). It is not necessary to show a causal connection between the substantial intoxication and what was said or done to indicate consent. That being said, no doubt a trier of fact may consider that issue as part of assessing whether in all the circumstances the person freely and voluntarily agreed to a sexual activity. But in this already complicated area there is no basis for suggesting that it is necessary to show that what was said or done to convey consent was done because the person was intoxicated.

9. [16]

   The construction of the section just explained is consistent with how the predecessor provision, s 61HA, has been construed: note Tabbah v R [2017] NSWCCA 55 at [142]-[143]; Beattie at [71]; Attwater v R [2021] NSWCCA 17 at [328]-[331]; Irmak v R [2021] NSWCCA 178 at [193]-[199]. It is also consistent with what was recently said in relation to s 61HE in Pandamooz v R [2023] NSWCCA 221 at [54]-[57] and [71]-[74]. Notably, in Beattie the Court held that the trial judge there had erred in suggesting “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” (at [71]).

10. [17]

    The NSW Bench Book suggested the following directions if an issue arose under s 61HE(8) (Criminal Trial Courts Bench Book, “Sexual intercourse without consent – until 31 May 2022”, at [5-820]):

11. [18]

    Read as a whole that suggested direction is acceptable. However, it does make things more complicated than they need to be by speaking about the complainant consenting then going on to say that that may not be consent. Whilst that is how s 61HE is structured it does not mean the issue needs to be explained to a jury in that way. Ordinarily, judges and practitioners are well advised to hew closely to the text of a statutory provision in considering or directing on an issue. Section 61HE(8) is a rare example where to do so may be liable to create confusion.

12. [19]

    A clearer and simpler direction would be something along the following lines (given subsequently to an explanation of what “consent” means):

The impugned directions

1. [20]

   The legal principles relevant to considering an attack on parts of the directions given by a trial judge to a jury were not in dispute. The parties agreed that the relevant legal question was whether there was a real chance that the any misdirection could have affected the jury verdict: note HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [2]. The Crown did not seek to rely on r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). That was so because, as shall be explained, counsel appearing for the applicant below had sought to challenge the directions proposed to be given by the trial judge. Nor did the Crown seek to rely on the proviso if error was made out.

2. [21]

   In Cliff v R [2023] NSWCCA 15 the Court noted the importance of reading the directions of a trial judge in context:

3. [22]

   Here, during his summing up the trial judge provided the jury with a document entitled “Written directions – the essential elements” (MFI7). It contained the following with respect to the issue of consent:

4. [23]

   The trial judge said essentially the same things orally in his summing up, with a few further points made. The differences are not material and it is sufficient to focus on what was said in MFI7. During his summing up the judge also read out to the jury the whole of the MFI7 document, even though he had already covered all of the ground in the document in what he had said. Thus what is set out above was communicated to the jury three times.

5. [24]

   The applicant makes no complaint with respect to [10]-[14] of the document, nor of paragraphs (i) and (ii) of [15]. But he submits that [15(iii)] is in error. His attack focused on the use of the word “while”, saying that it suggests that if there is any temporal overlap between the substantial intoxication and the consent given then the law automatically renders the consent void.

6. [25]

   The attack has force but not quite for the reason the applicant gives. Section 61HE(8)(a) provides that “it may be established that a person does not consent to a sexual activity … if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug”. The provision itself thus uses the word “while”. The problem is not so much with the use of that word but with the failure to take account of the significance of the statutory words “it may be established”. His Honour said that “[t]he law provides that a person does not consent to sexual intercourse if the person consented while substantially intoxicated by alcohol”. That is incorrect. The law, correctly understood, provides that in such circumstances it may be established that the person did not consent to sexual intercourse, taking account of all the circumstances. The statement wrongly suggests that if the jury found the person consented while substantially intoxicated then they are necessarily taken not to have consented.

7. [26]

   However, something like that point is communicated by the next sentence, in [16], saying that “it does not necessarily follow that you should be satisfied beyond reasonable doubt she did not consent”. The sentence does introduce a causal element into the inquiry, namely whether “the complainant consented because she was substantially intoxicated by alcohol” (emphasis added). The second sentence at [16] makes the same suggestion. As explained above at [15], such a causal inquiry is not necessary. In this matter that appears to reflect how the Crown put its case, and the applicant does not complain about these statements. What is relevant for current purposes is that the paragraph does correctly suggest that substantial intoxication does not necessarily mean that she did not consent, and that the essential matter is whether the complainant did not freely and voluntarily agree to the sexual intercourse.

8. [27]

   However, the final paragraph of the discussion, [17], appears to repeat the error manifest in [15(iii)]. It again suggests that if the complainant’s consent was given while she was substantially intoxicated by alcohol, then that suffices to establish that she did not freely and voluntarily agree to the sexual intercourse. Counsel for the Crown sought to put a different complexion on the use of the word “because” in the paragraph. In effect she argued that it simply again manifested a causal understanding of s 61HE(8), that is, suggesting that what was said or done to indicate consent may be undermined if it was caused by the complainant’s substantial intoxication. Counsel submitted “that that was the ground upon which the Crown said, in this case, that the jury would not be satisfied that the consent that was said to have been given by the complainant was not true and voluntary”. I accept that is a possible way to understand the sentence, in its context. However, in my view the more natural understanding of the word “because” in the sentence is that it is used in the sense of if her consent was while she was substantially intoxicated by alcohol, then that is enough to establish that the complainant did not freely and voluntarily agree. The paragraph does not suggest that intoxication is just a circumstance to take into account in assessing consent. It suggests that it is sufficient to establish a lack of consent.

9. [28]

   In the court below counsel then appearing for the applicant had sought that [17] be excluded altogether from the written summary of elements. Counsel sought in the alternative that the word “will” in the first line be replaced with “may”, so it read “the Crown may succeed”. In the further alternative she sought that the words at the end of the paragraph, “while she was substantially intoxicated by alcohol”, be replaced with the words “due to her substantial intoxication”. I note that that suggestion would also have unnecessarily introduced the element of causation. In any case, his Honour rejected all of these submissions, considering that the paragraph was consistent with s 61HE(8).

10. [29]

    As already indicated, it is important not to read a direction to a jury in isolation. At least [16] of the document was correct, leaving aside the causation issue. However, it was sandwiched between two paragraphs which were incorrect. Moreover, critically, [17] begins with the words “To put it another way”. That phrase suggests that what is set out in the paragraph communicates a sufficient understanding of the issue.

11. [30]

    The issue of whether or not the complainant consented to the two charged sexual activities was one of the two key issues in dispute in the trial, the other being the related issue of what the applicant understood about her claimed lack of consent. There was little doubt about the complainant’s state of intoxication – an ambulance ended up being called. Paragraph 17 was at the end of the section of the document dealing with the consent issue. It would be a natural focus for the jury in reminding themselves what they had to consider.

12. [31]

    Reading the relevant paragraphs of the document as a whole and in context, in my view there was a real chance that the jury would have been led to understand that it was enough to find that the complainant did not consent to the sexual activity in question if the jury found that she was substantially intoxicated. There was a real chance that the misdirections at [15(iii)] and [17] of MFI7 could have affected the jury verdict. That conclusion is reinforced by the fact that the errors were communicated three times to the jury: once in writing and twice orally.

13. [32]

    The Crown sought to rely on the fact that the jury had not asked the trial judge for any clarification of the directions given, in contrast to what had occurred in Beattie. However, that argument does not advance matters. The fact that the jury did not ask a question on the point suggests that they did not think they needed clarification or further guidance. It does not throw light on what they understood from the directions given. They may have been confident in a misunderstanding.

14. [33]

    The Crown also referred to parts of the closing addresses given by counsel for either side in the Court below. Counsel for the applicant below correctly said, more than once, that “people can and do consent to sexual activity when they are intoxicated”, and stated that the fact of intoxication does not necessarily mean that the complainant did not consent. However, the relevant submission of the solicitor advocate appearing for the Crown below was itself somewhat problematic. She said:

15. [34]

    The first sentence quoted, taken by itself, tends to suggest that substantial intoxication is enough to establish a lack of consent. To some extent that error is ameliorated by what follows. Even so, it does not come close to overcoming the force of what was communicated three times by the trial judge. Nor did the correct submissions made on behalf of the applicant. As the solicitor advocate herself appropriately indicated, what the judge said on the law was the most important thing. Juries are assumed to have acted in accordance with the directions given to them by judges: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] and [31].

16. [35]

    In my view a miscarriage of justice has been established.

Orders

1. [36]

   The applicant accepted that a new trial should be ordered if the appeal was upheld. Whether or not a new trial should in fact proceed in all the circumstances is a matter for the Director of Public Prosecutions.

2. [37]

   The orders of the Court should be as follows:

   1. (1)

      Grant leave to appeal, to the extent necessary.

   2. (2)

      Appeal upheld.

   3. (3)

      Quash the applicant’s conviction on count 2, with a new trial to be had.

   4. (4)

      List the matter for arraignment in the District Court on Friday 19 July 2024 or as otherwise directed by that Court.

3. [38]

   DAVIES J: I agree with Kirk JA.