The judgment will be studied carefully by lawyers involved in penetrative sex trials. It’s a (rare) unanimous judgment by French CJ, Hayne, Crennan, Keiffel and Bell JJ. Like the decision it reverses, it is extremely brief.
At risk of over-simplification, the general take-homes are these:
- Consideration of any question about the law of rape in Victoria begins and ends in consideration of the relevant statutory provisions. Reference to decisions about the common law of rape is useful only if such reference assists in construing the applicable statutory provisions.
- An accused’s belief in consent is relevant at a trial for rape only if evidence is led or an assertion is made that the accused did believe that the complainant was consenting to the sexual act: s 37AA Crimes Act 1958. The reference to an assertion being made is important. It encompasses an accused’s out of court statement, such as an record of interview with police, tendered in evidence and contains an assertion that the accused believed that the complainant was consenting, and by other forms of evidence. The High Court didn’t provide further guidance on what these are (or aren’t).
- In considering any question about an accused’s asserted belief in consent it is necessary to keep at the forefront of consideration that s 38(2) prescribes the relevant mental element for the offence of rape as awareness that the complainant was not or might not be consenting or, after the 2007 amendments, not giving any thought to whether the complainant was not or might not be consenting. Belief in consent is not the controlling concept. It is relevant only so far as it sheds light on the accused’s awareness that the complainant was not or might not be consenting.
- If evidence is led or an assertion is made that the accused believed that the complainant was consenting, the directions required by s 37AA would oblige the jury to consider whether the belief was reasonable (and any evidence of that belief). But neither s 37AA nor any other relevant provision of the Crimes Act provide that an accused must be taken to be aware that the complainant might not be consenting unless the accused reasonably believed that the complainant was consenting.
The High Court noted that no assertion or evidence had been led at the trial that the accused believed that the complainant consented to the penetration. The Court of Appeal had earlier decided that an available inference should have been enough to necessitate directions to the jury about a belief in consent. The High Court disagreed. In the absence of that assertion or evidence, knowledge of the accused that the complainant was or might be asleep necessarily demonstrated that he was aware that she might not be consenting.
French CJ, Hayne, Crennan, Keiffel and Bell JJ concluded [at 35]:
No other possibility was open. Absent an assertion or evidence that the accused believed that the complainant had in fact consented to the act of penetration, there was no other possibility – that the accused may have positively believed that the complainant was in fact consenting – open and raised for consideration by the evidence. The jury were not required to exclude a possibility of that kind before returning a verdict of guilt.