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Supreme Court of South Australia Decisions |
COURT
IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA
COURT OF CRIMINAL APPEAL
KING CJ(1), PERRY(2)
AND DUGGAN(3) JJ
CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judge's
summing-up - Rape - caution
regarding sexual allegations - warning - whether
erroneous in law having regard to s.341(5) Evidence Act - Longman v R [1989] HCA 60; (1989)
168 CLR 79 and R v Pahuja (1980) 49 SASR 191 considered - consent - direction
as to persuasion "in an acceptable way" involving
"rougher than usual
handling" whether error of law.
HRNG
ADELAIDE, 15 March 1993
#DATE 20:4:1993
Counsel for the appellant:
Mr J J Doyle QC with
Mr S K Mcewen
Counsel for the respondent: Mr M L Abbott QC
with
Mr M J Barnett
Solicitors for the respondent: David Stokes and
Associates
ORDER
Answers to Questions 1 and 2 - 'Yes'.
JUDGE1
KING CJ The questions of law referred to this
Court arise out of the trial
of the accused on an information containing five counts of rape, one of
attempted rape, and one count
of assault occasioning actual bodily harm. He
pleaded guilty to the charge of assault occasioning actual bodily harm. He
pleaded
not guilty to the charges of rape and attempted rape and was tried by
judge and jury in the Supreme Court. The trial resulted in
his acquittal on
all charges of rape and the charge of attempted rape.
2. The accused and the alleged victim were husband and wife.
They married in
October 1987 after a brief sexual relationship. The marriage was marred by
the wife's sexual difficulties, apparently
resulting from sexual abuse as a
child and perhaps from other causes. She was able to engage in sexual
intercourse happily at some
times but not at others.
3. The wife's evidence was that the accused quite regularly forced himself
upon her when she was unwilling,
but that consensual sexual intercourse also
occurred regularly. The forced sex was sometimes accompanied by blows. The
incidents
charged were three incidents involving penile penetration of the
vagina, one incident of penetration of the vagina by a bottle, one
incident of
penile penetration of the anus and one incident of attempted fellatio. The
accused gave evidence denying the alleged
anal intercourse and the act with
the bottle and denying the occurrence of any sexual act or attempt thereat
against the will of
the wife. When the wife was disinclined to engage in
sexual intercourse, he would sometimes make an effort to "get her interested"
by trying to cuddle her and to touch her. At times the effort would take the
form of more boisterous playfulness which would result
in being "astride of
her, on my knees, on the bed, trying to play, trying to be playful with her."
Sometimes the wife would respond
and sometimes she "would flatly reject" the
advances. He denied that he ever forced himself on her when she refused.
4. A case
has been stated reserving two questions of law to the Full Court.
The first question is as follows:
"Was it an error in law to
warn the jury of the danger
of false allegations in a sexual case in the terms that
were used, namely 'The charges which
have been brought
against Mr Johns are charges of a sexual nature. He has
pleaded guilty to an assault. There is really
in fact
not much significance in the assault charge, but the
charges which he is fighting and denying (and he has
firmly
denied them) are of a sexual nature and I must
warn you to be especially careful in considering the
evidence in a case where
sexual allegations are made.
Experience has taught the judges that there have been
cases where women have manufactured or
invented false
allegations of rape and sexual attack. It is a very
easy allegation to make. It is often very hard to
contradict. Very few people are going to make up a
story of a sexual attack in a hall with a lot of people
so it usually
concerns a place where there is only two
people. It is hard to contradict and, of course, it can
be of a very serious and
distressing nature. In order
to illustrate the fact that such allegations have been
manufactured in the past, and just to
say something of
the effect that false allegations can have, I will tell
you an anecdote. Many years ago now in England,
a
respectable married businessman, with children, got in a
train in London to go to a station outside London. It
was
quite a trip and some of it was through countryside.
And he sat alone in a compartment. It was one of those
that they call
'dogboxes'; there's a corridor down the
side of the train, with various compartments leading off
it. It was a quiet time
and he sat in his compartment
alone. After a station or two, he was still alone; a
woman got in. She seemed to be a respectably-dressed
woman. The train set off to go through a long patch of
country side (sic) before the next station. The woman
approached
the man; sat near him; tore at her dress to
expose her chest; knocked her head hard against the
wooden side of the train
and scratched herself, thus
producing bruising and bleeding; and pulled the
communication cord. The train stopped; the guard
came
running. 'He tried to rape me' she said. The guard
said he would have to call the police, and did. With
the woman
making this allegation, the police felt it
their duty to charge the respectable businessman. So he
was arrested, brought
before a magistrate and released
on bail. It was a shocking thing for him to have to
face. It was too much for him. He
took his own life.
Soon after that, the same sort of incident happened on
the same run, at the same spot, with the same woman.
Further investigations showed that she was mentally
deranged and it turned out that she had been doing this
quite a bit.
So you can see how careful we have to be
about false allegations of rape. That is a dramatic
story, of course, removed
from the facts here, but it is
just an illustration of the need to scrutinise all the
evidence very, very carefully, bearing
in mind all the
time that it is possible for a woman to manufacture a
false allegation and that it has happened."
5. This
question raises issues as to the implications of s.341(5) of the
Evidence Act 1989 which is as follows: "In proceedings in which
a person is
charged with a sexual offence, the judge is not required by any rule of law or
practice to warn the jury that it is unsafe
to convict the accused on the
uncorroborated evidence of the alleged victim of the offence."
6. It has been established by the judgments
in Longman v R [1989] HCA 60; (1989) 168 CLR 79
in the High Court and R v Pahuja (1988) 49 SASR 191 that the abolition of the
rule of practice requiring a corroboration
warning in sexual cases, involves
the abrogation of the reasons for the former rule of practice. It is now an
error for a trial
judge to caution a jury in terms which relate the warning to
the generality of complainants in sexual cases as distinct from the
complainant in the particular case. Moreover it is an error to indicate as
reasons for such warning as is given, considerations
said to be applicable to
sexual complainants in general or sexual cases in general as distinct from
considerations applicable to
the particular complainant or the facts of the
particular case. It is also an error to state that the warning is given as a
matter
of law or arises from the experience of the law or the courts.
7. There are many circumstances, however, in which it is proper to
give the
jury a warning as to the risks of convicting on uncorroborated evidence and,
if it is necessary to avoid a perceptible risk
of a miscarriage of justice
arising from the circumstances of the case, a suitable warning is necessary;
Longman v R supra per Brennan
J, Dawson J and Toohey J at p.86. I repeat and
emphasise what I said in R v Pahuja supra in the following passages:
"Section
341(5) has the effect, in my opinion, of
abolishing the rule of law or practice as to the
corroboration warning in sexual
cases. There is no
longer a legal obligation on the judge to give any
warning. He is left free, however, to give, in the
performance of his function of providing guidance to the
jury on matters of fact, any proper warning or caution
in relation
to the evidence of the alleged victim which
the circumstances of the case appear to indicate."
8. 49 SASR 191 at p.197. "In
many sexual cases prudence will dictate the
giving of some appropriate caution or warning. If, since the enactment of s
34i(5),
a judge cautions or warns the jury as to their approach to the
evidence of an alleged victim of a sexual offence, he does so as part
of his
duty to provide guidance to the jury as to the evidence and the facts. He is
free to frame the caution or warning in such
terms as he sees fit. It must be
clear to the jury, either from a specific direction or at least from the
general tenor of the summing
up, that they are free to reject the judge's
suggested approach to the evidence of the alleged victim or any views which he
might
express on such questions of fact. He must not convey the impression
that the caution or warning is given as a matter of law. Subject
to those
considerations, he may give the jury a warning in the conventional terms or in
any other terms which commend themselves
to him."
9. At p.198. "Although I consider that s 341(5) has had the effect of
abolishing the rule of law or practice relating
to corroboration warnings in
sexual cases, I cannot read into it some of the wider implications attributed
to it. It does not confer
upon the evidence of an alleged victim in a sexual
case any particular legal status, nor inhibit the triers of the facts in a
sexual
case from weighing that evidence in the usual way, having in mind such
aspects of human nature and behaviour as they consider to
be material for that
purpose. Acts of Parliament do not and do not purport to, change human
nature. There are aspects of human nature
and behaviour, such as sexual
appetite, certain motives for making false complaints and proneness to certain
types of fantasies,
which have a peculiar bearing upon sexual cases and which
may be important in certain factual situations. The ease of making an
allegation and difficulty of refutation, often given as reasons for the former
rule, are considerations not entirely confined to
sexual cases, but are often
nevertheless of considerable importance in such cases. The trial judge is not
required to ignore such
matters in charging the jury and may have a duty in
certain cases to remind them of such considerations. It is to be remembered,
however, that the weight to be attached to such considerations in any
particular case is a matter for the jury, and that should be
made clear to
them." At p.199. It is proper where an accused person has given evidence in
denial of the charge and there is no convincing
corroboration of the alleged
victim's allegation, to remind the jury that the case is, or may be if they
find the supporting evidence
unconvincing, a case of oath against oath and of
the difficulty in such circumstances of arriving at a conclusion of guilt
beyond
reasonable doubt. Where that course is taken, the jury should also be
told that there are cases in which an alleged victim's evidence
is so
convincing and the accused's denials so incredible that it is possible to
reach that state of mind, but that caution is indicated.
It is proper to
refer to aspects of human nature and behaviour such as those mentioned in the
above passages from Pahuja's case
which are relevant to the facts of the case.
In discussing the evaluation of witnesses, reference to the possibility of
hidden motives
for giving false evidence or making a false allegation is
permissible if that appears to the judge to be desirable having regard
to the
circumstances of the case.
10. There are special difficulties in reaching a just verdict where the rape
or attempted rape
is alleged to have occurred in the matrimonial bed or the
bed occupied by the parties to a continuing sexual relationship. There
is the
risk of motives, disclosed or undisclosed, arising out of tensions in the
relationship. There is the risk of misunderstandings
as to consent arising
out of the habitual physical contact inherent in the relationship. The
opportunities for corroboration are
slight and an accused can do little to
defend himself apart from denying the allegation. These factors, where they
apply, are all
proper bases for an appropriate warning.
11. Such warning as the judge sees fit to give, is given as part of his
function to assist
the jury in its evaluation of the facts and the evidence.
The judge may refer to such aspects of human experience and behaviour as
he
considers to be relevant to the facts of the case, but must make clear to the
jury that he is dealing with the facts and that
they are free to reject his
approach to the facts. The Solicitor-General drew attention to an observation
of mine in R v Pahuja
supra at p.198 in a passage which was approved by Deane
J in Longman v R supra at p.96 as follows: "Subject to those considerations,
he may give the jury a warning in the conventional terms or in any other terms
which commend themselves to him".
12. The "conventional
terms" which I had in mind, and which Deane J must have
had in mind in approving the passage, were that it is dangerous to convict
on
the uncorroborated evidence of the person on whom the offence was alleged to
have been committed (Kelleher v R [1974] HCA 48; 1974 131 CLR 534 per Gibbs J at p.553). I
did not intend to include in the expression "conventional terms" any reference
to the
experience of the law or the judges or any reasons expressed to be
applicable to the generality of complainants or sexual cases.
In my opinion
it is permissible for a trial judge to give a warning in "the conventional
terms" so understood, or in any other terms
which he considers to be
appropriate.
13. There were, in my opinion, four errors of law in the direction quoted in
the first question.
First, the warning was expressly related to sexual cases
generally. His Honour said: "... I must warn you to be especially careful
in considering the evidence in a case where sexual allegations are made."
14. Both Longman and Pahuja demonstrate that to be an
erroneous approach.
Second, the reasons given for the warning referred to the generality of
complainants in sexual cases. I refer
to the following passage in the summing
up: "Experience has taught the judges that there have been cases where women
have manufactured
or invented false allegations of rape and sexual attack. It
is a very easy allegation to make. It is often very hard to contradict."
Third, by using the expressions "I must warn you" and "Experience has taught
the judges", His Honour conveyed to the jury that his
warning had the weight
of the law behind it and was not merely a piece of advice as to the evaluation
of the evidence which the jury
was free to accept or reject. Fourth, the
recounting of the anecdote also conveyed that the warning related to the
generality of
sexual cases. The facts of the anecdote had no relation to the
facts of the case at bar and were, indeed, far removed from it.
It could only
have conveyed to the jury that complainants in sexual cases generally are to
be viewed with suspicion and that is not
legally permissible.
15. The answer to the first question should be "Yes".
16. The second question is as follows:
"Was it an
error in law to direct the jury in relation
to consent and persuasion in the terms that were used,
namely 'Bear steadily
in mind - I am sorry to be
repetitive - it is for the Crown to prove the lack of
consent. "Consent" means free voluntary
agreement to
engage in an act of sexual intercourse at the time
relevant. Submission is not consent. Of course, you
may run into considering in this case the question of,
shall I say, persuasion. There is, of course, nothing
wrong with
a husband, faced with his wife's initial
refusal to engage in intercourse, in attempting, in an
acceptable way, to persuade
her to change her mind, and
that may involve a measure of rougher than usual
handling. It may be, in the end, that handling
and
persuasion will persuade the wife to agree. Sometimes
it is a fine line between not agreeing, then changing of
the
mind, and consenting. You will bear that in mind
when considering the totality of the evidence about each
act of intercourse.'"
17. Before turning to a consideration of the above passage in the summing up,
it is opportune to make certain general points. First,
there is no question
of this trial judge or any other holder of judicial office condoning domestic
violence in any form. The application
of force by one spouse to another
without that other's consent is an assault and is a contravention of the
criminal law. No judge
would or could condone such criminal conduct. Second,
a trial judge in the summing up is not delivering a lecture to the public
on
morals or manners in marital relations or in the interaction of parties to a
sexual relationship. The judge is concerned only
to direct the jury in
relation to the legal issues arising out of the charge. Third, it is the duty
of a trial judge, where appropriate,
to caution the jury against confusing
conduct, whether desirable or undesirable, which is not the subject of the
charge, with the
conduct upon which the charge is based. Fourth, a summing up
is directed to the issues raised by the evidence for the prosecution
and the
defence and is understood by the jury in the light of those issues and that
evidence.
18. The charges in the present case
were rape and attempted rape. Rape is
defined in s.48 of the Criminal Law Consolidation Act. It occurs when a
person has sexual
intercourse, as defined in the Act, with another person
without that other person's consent knowing that that other person does not
consent or being recklessly indifferent as to whether that other person
consents. At the time of these alleged offences, although
not now, s.73(5) of
the Act provided that:
"... a person shall not be convicted of rape or
indecent assault on his spouse
or an attempt to commit,
or assault with intent to commit, rape or indecent
assault on his spouse (except as an accessary)
unless
the alleged offence consisted of, was preceded or
accompanied by, or was associated with -
(a) assault occasioning
actual bodily harm, or threat of
such an assault, on the spouse;
(b) an act of gross indecency, or threat of such an act,
against the spouse;
(c) an act calculated seriously and substantially to
humiliate the spouse, or threat of such an act;
or
(d) threat of the commission of a criminal act against
any person."
19. Section 73(5), however, is not relevant to
the point raised in the Case
Stated. The judge gave proper directions as to s.73(5) in other parts of the
summing up. The passage
with which the second question in the Case Stated is
concerned, deals with the issue of consent.
20. The law on the topic of consent
is not in doubt. Consent must be a free
and voluntary consent. It is not necessary for the victim to struggle or
scream. Mere
submission in consequence of force or threats is not consent.
The relevant time for consent is the time when sexual intercourse occurs.
Consent, previously given, may be withdrawn, thereby rendering the act
non-consensual. A previous refusal may be reversed thereby
rendering the act
consensual. That may occur as a consequence of persuasion, but, if it does,
the consequent consent must, of course,
be free and voluntary and not mere
submission to improper persuasion by means of force or threats.
21. The learned trial judge,
in the passage under consideration, made clear
to the jury that "'Consent' means free voluntary agreement to engage in an act
of
sexual intercourse at the time relevant". He also made clear that
"Submission is not consent". He drew attention to the possibility
of an
initial non-agreement being followed by a change of mind and consent. There
can be no criticism of the summing up in those
respects.
22. The Solicitor-General argued, however, that the direction as to
persuasion was wrong in law.
23. The Solicitor-General's
first argument was that the direction was
misleading in that it would be understood as conveying that rough handling was
a legally
permissible means of persuasion with the danger that the jury might
conclude that submission in consequence of rough handling amounted
to consent.
I do not think that the passage, understood in the light of the evidence and
the issues raised by the evidence, is open
to that construction. The evidence
of the accused was that his methods of persuasion, when his wife was
reluctant, involved trying
"to smooch to her", but also on occasions involved
what might be regarded as a boisterous playfulness. I think that the thrust
of
his evidence, however, when fairly understood, was that these methods were
engaged in only when acceptable to his wife and that he
desisted when "she let
me know when she couldn't go any further". The passage in question was
directed to the issue raised by that
evidence.
24. The sentence containing the reference to "rougher than usual handling"
also contains the phrase "in an acceptable
way". In his report to this Court,
the judge has explained that that meant in a way acceptable to the wife. I
consider that a jury
listening to the direction with the evidence of the
accused in mind, could only understand the phrase in that sense. The phrase
"in an acceptable way", that is to say "in a way acceptable to the wife"
clearly governs the whole sentence. That is so as a matter
of syntax. The
first part of the sentence states that "There is, of course, nothing wrong
with a husband, faced with his wife's
initial refusal to engage in
intercourse, in attempting, in an acceptable way, to persuade her to change
her mind". That is obviously
correct law. The second part of the sentence
states that "that", that is to say attempting to persuade in a way acceptable
to the
wife, "may involve a measure of rougher than usual handling". The
reference to "rougher than usual handling" would be puzzling if
it were not
for the accused's evidence. It is fully explained, however, by the accused's
evidence that his wife accepted methods
of persuasion of a somewhat boisterous
nature. It was for the jury to decide whether it was prepared to accept that
evidence in
the face of the wife's contrary version. That was not the
function of the judge. His function was to explain to the jury the legal
implications of the evidence of the accused if that evidence were accepted by
the jury.
25. The Solicitor-General argued that the
passage was rendered misleading by
the failure of the learned judge to reiterate at the conclusion of the
direction as to the significance
of persuasion, that mere submission to force
or threats was not consent. Perhaps the passage would have been improved by
such reiteration.
The judge, however, had just told the jury that "Submission
is not consent", and repetition was not essential.
26. The Solicitor-General
also argued that the use of the expression
"husband, faced with his wife's initial refusal" conveyed the notion that
"rougher than
usual handling" was permissible to a husband although it would
not be to another. I am unable to discern that meaning in the passage.
The
use of the words "husband" and "wife" simply arose from the fact that that was
the relationship of the parties.
27. The legal
position regarding persuasion by a husband of a wife who is
initially unwilling to engage in sexual intercourse is quite clear. Wooing
and
persuasion are not unlawful. "Rougher than usual handling" if not with the
consent of the wife, is an unlawful assault. If
the wife consents to "rougher
than usual handling", it is lawful, at least if it stops short of the
infliction of physical harm.
If sexual intercourse follows persuasion,
whatever form the persuasion takes, the issue as to consent is whether the
wife freely
and voluntarily consented to such intercourse and did not merely
submit to force or threats.
28. Perhaps the clarity of the passage
in question might have been improved.
It is capable of misunderstanding if not read in the context of the evidence
in the case and
in particular the issues raised by the evidence of the
accused. It must be remembered, however, that a summing up is not an essay
on
the law but an oral explanation to a jury, in the atmosphere of a criminal
trial, of the legal issues arising out of the evidence
which the jury has
heard. I consider that the impugned passage, when understood in the light of
the issues raised by the evidence,
accurately conveyed to the jury the law
applicable to the issues which they had to consider relating to consent and
the effect of
persuasion.
29. I would answer the second question "No".
30. I have had the advantage of reading the reasons for judgment of my
colleagues who differ from me as to the correct answer to this question. The
difference of opinion relates to how the jury would
have understood the
passage in question. If, as the majority of the Court believes, the jury
would have understood the passage as
conveying that it is legally permissible
for a husband to use a measure of force in persuading his wife to agree to
sexual intercourse,
or that submission to forceful persuasion is the
equivalent of true consent, the passage is wrong in law. If, however, as I
believe,
the jury, being aware of the issue of consensual boisterous
playfulness in the course of persuasion raised by the defence, and hearing
the
summing up as a whole, would have understood that acceptability to the wife
was necessary for "rougher than usual handling" to
be legally permissible, and
that in order to provide an answer to a charge of rape, consent produced by
persuasion of any kind must
be a free and voluntary consent, there is no error
of law.
31. It should be pointed out that the answers to those questions of law
do
not impugn the legal or moral validity or effect of the acquittal of the
accused person. These questions are before this Court
pursuant to a statutory
procedure which does not affect the outcome of the trial. It is a procedure
which enables the Director of
Public Prosecutions to obtain rulings as to
matters of law which arise in a trial. There is no right of appeal against an
acquittal
by a jury. Whatever answers are given to the questions of law, the
acquittal of the accused by the jury retains its legal and moral
validity and
effect.
JUDGE2
PERRY J This is a case stated on the application of the Director of Public
Prosecutions pursuant to
s.350(1a) of the Criminal Law Consolidation Act
(1935) reserving two questions of law for the consideration and determination
of
the Court. The questions arise out of a trial in which the accused was
presented on an information which alleged five counts of
rape, one count of
attempted rape and one count of assault occasioning actual bodily harm. The
accused pleaded guilty to the assault
count but not guilty to the remaining
counts on the information, upon which he was acquitted.
2. It should be made clear at the
outset that the procedure by which the
matter has been brought to this Court is not an appeal. The acquittal stands
and is not open
to question, irrespective of the manner in which the points of
law falling for consideration are determined. The procedure under
s.350(1a)
is designed simply to allow the Director of Public Prosecutions to have this
Court rule in the public interest upon questions
of law for the guidance of
judges conducting trials in which similar questions may arise in the future.
The jurisdiction is advisory
not appellate (see DPP's Reference (1984) VR 737
per Young CJ, Murphy and Hampel JJ at 729 and R v J (1987) 9 NSWLR 615 per
Hunt
J at 627). The identity of the acquitted person may not be published
(Criminal Law Consolidation Act s.351(a)).
3. In order to
understand the case stated, it is necessary to say something
about the accused and the alleged victim whom I will call "M", and the
circumstances surrounding the alleged offences.
4. At the time of trial M was aged 30 years and the accused 28. The accused
enlisted
in the Royal Australian Air Force in 1980. In 1986 he was stationed
in Brisbane. M enlisted in the Air Force in Adelaide in early
1986 and was
immediately transferred to Brisbane where she met the accused soon afterwards.
After a period of time they established
a relationship, and in April 1987
became engaged, at which time the accused began living with her. They married
in October of the
same year. Even before the marriage, it was apparent that
there were some difficulties in their sexual relationship. M had told
the
accused before their engagement that she had been sexually molested between
the ages of 4 and 12. She sometimes had flashbacks
during which she was
reminded of that experience. When those flashbacks occured she was unable to
countenance sexual relations.
A further matter of concern to the accused was
that M admitted to him that she had a previous lesbian relationship with a
young
woman. The accused said in evidence that he was upset when M went off
to visit that person soon after their marriage. More tension
was created
between them when M invited the same young lady to stay with them during the
first Christmas of their marriage.
5. The
evidence of the accused was that soon after he and M started living
together "things started going terribly wrong". He described
M as moody,
lacking in affection and progressively withdrawing from sexual contact. He
said in evidence that by the time of the
marriage, sexual intercourse was
"basically non-existent". When asked by the learned trial Judge why he had
married M in those circumstances,
he said, "I asked myself that same
question".
6. M's evidence was that from the start their relationship was punctuated by
periods
when she did not feel inclined to have sexual relations. She said
that at first, while they were living in Brisbane, the accused
was sympathetic
and did not attempt to force the issue. In 1988 the accused and M moved to a
new posting in Melbourne. M's evidence
was that the move to Melbourne
signalled a change in the accused's attitude to her. While there were
occasions of consensual sexual
intercourse, to use her words, "If my husband
wanted sex and I had problems with it, he would force sex from me".
7. She said that
happened quite frequently. She said also that at times the
accused became physically violent. They both began to seek counselling.
The
problems remained unresolved.
8. In January 1989 there was a further posting, this time to Adelaide. Their
relationship continued
to deteriorate. The evidence of M was that in July
1989 the accused began forcing her to submit to anal intercourse. The first
two counts in the information relate to an episode alleged to have occurred in
September or October of that year, when on M's account
of the matter there was
forced anal intercourse (the subject of the first count) and forced vaginal
intecourse occurring immediately
thereafterwards (the subject of the second
count).
9. In November 1989, M became aware that she was pregnant. On M's evidence,
the accused's violent behavour persisted. The third and fourth counts relate
to an incident said to have occurred on 22 April 1990
when, according to M,
the accused attempted an act of fellatio (count 3), following which he is
alleged to have inserted a bottle
into her vagina (count 4).
10. On 29 June 1990, M gave birth to a daughter. That event did nothing to
repair the relationship between
the parties.
11. Matters came to a head in February 1991. Count 5 relates to an
allegation by M that on 27 February 1991, just
after she had been showering,
the accused assaulted her and had vaginal intercourse with her against her
will, in the bathroom.
Count 6 relates to an episode which is said to have
occurred the next morning in the baby's bedroom when the accused is alleged
again
to have had vaginal intercourse with her against her will.
12. It was later that day, that is, 28 February 1991, that, according
to M,
she informed the accused that their relationship could not continue, and one
of them would have to leave. The accused admits
that M said something to that
effect, but says that it was accompanied by an indication that he would never
see their daughter again.
Be that as it may, it is common ground that the
accused proceeded to commit a physical but not sexual assault, which is the
subject
of the charge of assault occasioning actual bodily harm, to which, as
I have said, he pleaded guilty. Following that assault, the
parties did not
cohabit further. At the trial, evidence was given for the prosecution by M
and by two police officers who had attended
at the accused's home following
the assault on 28 February. One of the officers gave evidence of a formal
interview which took place
that evening at Elizabeth Police Station. The
accused freely admitted the assault and said that he was sorry. He said:
"All I wanted
to do was hurt her. She was going to keep me away from my
daughter."
13. He admitted to having assaulted her before. When the allegation
was put
that he had raped M that morning and the night before, the accused declined to
answer further questions until he had spoken
with a lawyer. No evidence was
given of any further interrogation of the accused.
14. The prosecution called three medical practitioners
who had, at various
times, examined M. I do not go into the detail of their evidence, as it is
not relevant to the questions under
consideration.
15. The accused gave evidence, but did not call any other witnesses. I have
already referred to some of his evidence.
When referring to what he said to
be M's refusal to respond to his advances in the early stages of the marriage,
he said: "I tried
to cuddle up to her, touch her, try and get her
interested." He said further: "At times she was receptive to it, depending on
how
she felt to certain degrees. Other times she was quite verbal in telling
me where to go." He said it was a problem which lead to
a lot of arguments.
He admitted that he pressured M at times to have intercourse with her. When
asked directly: "Did you ever physically
force yourself upon her?" He said:
"It could be looked at that way, yes." He went on to describe how he would
fondle her to try
to arouse her interest and, to use his words, "to kindle
some response".
16. He denied at any time having anal sex with M, and said
that as far as he
knew, despite the fact that he had occasionally put pressure on her to have
sex, he had never performed the act
of intercourse on any occasion without her
consent.
17. The accused denied the acts said to constitute the first four counts. As
to count 5, the incident which occurred after M had been showering, he said
that during that evening he had made approaches to his
wife which she
discouraged, but that he had "cuddled her" and that they ended up having
consensual intercourse on the floor of the
bathroom.
18. His evidence as to the episode the next morning, that is, the morning of
28 February, (the subject of count 6) was
that after an initial rebuff, M had
said, "Go ahead and get it over and done with", following which consensual
intercourse occurred.
19. After a retirement of almost five hours, the jury, which comprised seven
women and five men, returned a verdict of not guilty
on all six counts, as to
the first three unanimously, and as to the remaining three by a majority.
20. It is against that background
that the two questions referred to this
Court fall to be considered.
21. I should say, before going on to deal with the questions,
that in
accordance with the usual practice, the learned trial Judge furnished to this
Court a report, in the course of which he gave
an explanation of the reasons
why he expressed himself as he did in the course of the summing up. That
report was read into the
transcript at the commencement of the case stated.
However, given the terms of the questions submitted to the Court, they must be
answered solely by reference to the transcript of the trial.
The First Question
22. This question is posed in the case stated in
the following terms:
"(i) Was it an error in law to warn the jury of the
danger of false allegations in a sexual case in
the
terms that were used, namely "The charges which have
been brought against Mr Johns are charges of a sexual
nature.
He had pleaded guilty to an assault. There is
really in fact not much significance in the assault
charge, but the charges
which he is fighting and denying
(and he has firmly denied them) are of a sexual nature
and I must warn you to be especially
careful in
considering the evidence in a case where sexual
allegations are made. Experience has taught the judges
that
there have been cases where women have manufactured
or invented false allegations of rape and sexual attack.
It is a very
easy allegation to make. It is often very
hard to contradict. Very few people are going to make
up a story of a sexual
attack in a hall with a lot of
people so it usually concerns a place where there is
only two people. It is hard to contradict
and, of
course, it can be of a very serious and distressing
nature. In order to illustrate the fact that such
allegations
have been manufactured in the past, and just
to say something of the effect that false allegations
can have, I will tell
you an anecdote. Many years ago
now in England, a respectable married businessman, with
children, got in a train in London
to go to a station
outside London. It was quite a trip and some of it was
through countryide. And he sat alone in a compartment.
It was one of those that they call "dogboxes"; there's a
corridor down the side of the train, with various
compartments
leading off it. It was a quiet time and he
sat in his compartment alone. After a station or two,
he was still alone; a
woman got in. She seemed to be a
respectably-dressed woman. The train set off to go
through a long patch of countryside
before the next
station. The woman approached the man; sat hear him;
tore at her dress to expose her chest; knocked her
head
hard against the wooden side of the train and scratched
herself, thus producing bruising and bleeding; and
pulled
the communication cord. The train stopped; the
guard came running. "He tried to rape me" she said.
The guard said he would
have to call the police, and
did. With the woman making this allegation, the police
felt it their duty to charge the respectable
businessman. So he was arrested, brought before a
magistrate and released on bail. It was a shocking
thing for him
to have to face. It was too much for him.
He took his own life. Soon after that, the same sort
of incident happened on
the same run, at the same spot,
with the same woman. Further investigations showed that
she was mentally deranged and it
turned out that she had
been doing this quite a bit. So you can see how careful
we have to be about false allegations of
rape. That is
a dramatic story, of course, removed from the facts
here, but it is just an illustration of the need to
scrutinise all the evidence very, very carefully,
bearing in mind all the time that it is possible for a
woman to manufacture
a false allegation and that it has
happened." (Summing up pages 5-6)
23. This question gives rise to the need to consider the
application to the
circumstances of the case of s.34i(5) of the Evidence Act. S.34i appears in
the Act under the general heading
"Evidence in Sexual Cases". It was
originally introduced in 1976 (Act No 84 of 1976). It was repealed and
re-enacted in 1984 when
the present text was substituted (Act No 90 of 1984).
24. Ss.(5) provides: "In proceedings in which a person is charged with a
sexual
offence, the judge is not required by any rule of law or practice to
warn the jury that it is unsafe to convict the accused on the
uncorroborated
evidence of the alleged victim of the offence."
25. Prior to the enactment of that provision, the law required judges
in
sexual cases to warn the jury of a need for caution before accepting the
uncorroborated evidence of the victim. This was coupled
with an obligation to
explain to the jury the meaning of corroboration, and to point to the evidence
which was capable, if they chose
to accept it as such, of amounting to
corroboration.
26. In Kelleher, [1974] HCA 48; 131 CLR 534, in explaining the origins of the rule, Barwick
CJ referred to a passage from Hale CJ "Pleas of the Crown" (vol 1, p.634),
see
at 543: "The Chief Justice's words ought to be remembered: 'It' (rape) 'is an
accusation easily to be made and hard to be proved,
and harder to be defended
by the party concerned, though never so innocent'.
27. Lord Salmon's statement of the reason for the rule
should also be borne
in mind. His Lordship said that convicting on the evidence of the woman or
girl alone '...is dangerous because
human experience has shown that in these
Courts girls and women do sometimes tell an entirely false story which is very
easy to fabricate,
but extremely difficult to refute'. (Reg v Henry; Reg v
Manning (1968) 53 Cr App R 150 at 153)".
28. The nature of the change effected
by s.341(5) was considered by this
Court in R v Pahuja (1988) 49 SASR 191. In that case, the Court held that the
section did away
with the rule of law or practice requiring a corroboration
warning in sexual cases, but that the trial judge might nonetheless give
such
a warning in the exercise of his discretion.
29. In Pahuja, King CJ said (197):
"There is no longer a legal obligation
on the judge to
give any warning. He is left free, however, to give, in
the performance of his function of providing guidance
to
the jury on matters of fact, any proper warning or
caution in relation to the evidence of the alleged
victim which
the circumstances of the case appear to
indicate. ........... (198) In many sexual cases
prudence will dictate the giving
of some appropriate
caution or warning. If, since the enactment of
s.341(5), a judge cautions or warns the jury as to their
approach to the evidence of an alleged victim of a
sexual offence, he does so as part of his duty to
provide guidance
to the jury as to the evidence and the
facts. He is free to frame the caution or warning in
such terms as he sees fit.
It must be clear to the
jury, either from a specific direction or at least from
the general tenor of the summing up, that
they are free
to reject the judge's suggested approach to the evidence
of the alleged victim or any views which he might
express on such questions of fact. He must not convey
the impression that the caution or warning is given as a
matter
of law. Subject to those considerations, he may
give the jury a warnining in the conventional terms or
in any other terms
which commend themselves to him."
30. He said further (199):
"Although I consider that s.341(5) has had the effect of
abolishing
the rule of law or practice relating to
corroboration warnings in sexual cases, I cannot read
into it some of the wider implications
attributed to it.
It does not confer upon the evidence of an alleged
victim in a sexual case any particular legal status,
nor
inhibit the triers of the facts in a sexual case from
weighing that evidence in the usual way, having in mind
such
aspects of human nature and behaviour as they
consider to be material for that purpose. Acts of
Parliament do not and do
not purport to, change human
nature. There are aspects of human nature and
behaviour, such as sexual appetite, certain motives
for
making false complaints and proneness to certain types
of fantasies, which have a peculiar bearing upon sexual
cases
and which may be important in certain factual
situations. The ease of making an allegation and
difficulty of refutation,
often given as reasons for the
former rule, are considerations not entirely confined to
sexual cases, but are often nevertheless
of considerable
importance in such cases. The trial judge is not
required to ignore such matters in charging the jury and
may have a duty in certain cases to remind them of such
considerations. It is to be remembered, however, that
the weight
to be attached to such considerations in any
particular case is a matter for the jury, and that
should be made clear to them."
31. Although King CJ dissented from the views expressed by Cox and Johnston
JJ in Pahuja as to the necessity for a warning where
a child is the victim or
a witness in a sexual case, the passages which I have cited do not conflict
with anything said in the other
judgments.
32. Pahuja was considered by the High Court in Longman [1989] HCA 60; (1989) 168 CLR 79.
That case turned on section 36BE(1)of the Evidence Act (1906)(WA).
S.36BE(1)(a) is in terms indistinguishable
in effect from s.34i(5) of the
South Australian Act. I refer later to sub-section (b).
33. The High Court held that the Western
Australian section dispensed only
with the requirement to warn of the general danger of acting on the
uncorroborated evidence of
alleged victims of sexual offences as a class, and
did not affect the requirement to give a warning whenever necessary to avoid a
perceptible risk of miscarriage of justice arising from the particular
circumstances of the case.
34. In the course of their joint
judgment, Brennan, Dawson and Toohey JJ said
(85):
"The warning of danger in acting on the uncorroborated
testimony of the
alleged victim in cases of rape and
other sexual offences places alleged victims of such
offences in a special category of
witnesses: Reg v
Hester (1973) AC 296 at 325; Reg v Spencer [1987] UKHL 2; (1987) AC 128
at 141; Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at 319,
323........ By abolishing the requirement imposed 'by
any rule of law or practice' par. (a)
(of the Western
Australian provision) overrode the reason which prompts
the giving of the warning. It removed the alleged
victims of sexual offences from that special category of
witnesses."
35. They went on to say:
"The mischief at which
the provision appears to have
been aimed is the adverse reflection which a warning
'required by any rule of law or practice'
casts
indiscriminately on the evidence of all alleged victims
of sexual offences, the vast majority of whom are women,
and the corresponding protection which the giving of a
warning confers on an accused in all cases of sexual
offences.
It is evident that the legislature regards
the reflection as unwarranted and the protection as
unjust. If the alleged victims
of sexual offences, as a
class, are not regarded by the legislature as suspect
witnesses, judges should no longer warn juries
that
allegations of sexual offences are more likely to be
fabricated than other classes of allegations."
36. They went on
to hold that the statutory provision did not affect the
judge's discretion to make a comment having regard to the circumstances of
the
case. They said (87):
"No longer may the judge tell the jury that it is
dangerous to convict in the circumstances described
in
par.(a) because the experience of the courts has shown
it to be so, but the judge may invite the jury in sexual
cases
(as is done in other criminal cases) to make their
own evaluation of the alleged victim's evidence in the
light of common
human experience. By force of par. (a)
alleged victims of sexual offences no longer form a
class of suspect witnesses, but
neither do they form a
class of especially trustworthy witnesses. Their
evidence is subject to comment on credibility in
the
same way as the evidence of alleged victims in other
criminal cases, but to comment only."
37. In Longman it was held
that the trial judge erred in failing to give a
warning. The circumstances which in the view of the High Court called for a
warning
was that the alleged victim in that case was a young girl aged 6 years
at the time of the first of two counts of alleged indecent
dealing and aged 10
at the time of the second. It was not until she was aged over 30 years that
she first made a complaint about
it, and she was 32 years of age at the time
of the trial. In the case of both of the alleged counts she alleged that she
had been
awakened from her sleep by the acts of the accused. The High Court
held that the long delay put it out of the accused's reach to
"explore in
detail the alleged circumstances" and perhaps to "adduce evidence throwing
doubt upon the complainant's story or confirming"
his denial (91). In those
circumstances, Brennan, Dawson and Toohey JJ held that it was "imperative that
a warning be given to the
jury".
38. S.36BE(1)(a) of the Western Australian Evidence Act, which as I have
said, equates with s.34i(5) of the South Australian
Act, is followed by a
further sub-section: "(b) The judge shall not give a warning to the jury of
the kind described in paragraph
(a) unless satisfied that such a warning if
justified in the circumstances." The presence of that additional provision in
the Western
Australian legislation does not alter the relevance of the
observations made by the High Court in Longman to the interpretation of
s.34i(5). The requirement in sub-paragraph (b) of the Western Australian
section goes no further than what was found by implication
to be the position
with respect to the South Australian section in the decision of this Court in
Pahuja, a decision which appears
in Longman to have been approved by the High
Court.
39. It follows that a direction to a jury in South Australia which has a
tendency
to characterise the complainant in a sexual case as a member of a
"class of suspect witnesses" will be erroneous in law. No such
error,
however, would infect a summing up which simply gives a warning tailored to
the requirements of the case designed to meet
particular circumstances present
in the case, which in the discretion of the learned trial judge appear, in the
interests of justice,
to necessitate such a warning. The factual
circumstances present in Longman give an indication of situations in which
such a warning
may be legitimate.
40. This case concerns an allegation of rape in marriage. A question arises
as to whether or not the fact that
the offending conduct is alleged to have
been committed by one spouse upon the other during the course of the marriage
is a circumstance
which warrants a particular warning.
41. Rape is defined by s.48 of the Criminal Law Consolidation Act as
follows:
"A person
who has sexual intercourse with another person
without the consent of that other person -
(a) knowing that that other person
does not consent to
sexual intercourse with him; or
(b) being recklessly indifferent as to whether that
other person
consents to sexual intercourse with him,
shall (whether or not physical resistance is offered by
that other person) be guilty
of the felony of rape and
liable to be imprisoned for life."
42. Pursuant to the common law, marriage involves an implied consent
to
intercourse on the part of the wife, except in cases where there is a
separation order or a decree nisi for divorce. As to the
history of the rule
at common law, see R v Miller (1954) 2 QB 282. The actual decision in Miller
has been severely criticised; see,
for example, "Marital Consent in Rape",
(1989) Crim LR 877 (Richard Brooks) and see generally the perceptive article
by Charlotte
L. Mitra "...For She Has No Right or Power to Refuse Her
Consent" (1979) Crim LR 558. In 1976 the common law rule was abrogated
in
South Australia by the enactment of s.73(3) of the Criminal Law Consolidation
Act (See Act No 83 of 1976) which provides: "No
person shall by reason only
of the fact that he is married to some other person be presumed to have
consented to sexual intercourse
with that other person."
43. The 1976 amending Act introduced an additional element peculiar to cases
of alleged rape in marriage
by the enactment of s.73(5) which was as
follows:-
"Notwithstanding the foregoing provisions of this
section, a person shall
not be convicted of rape or
indecent assault upon his spouse, or an attempt to
commit, or assault with intent to commit,
rape or
indecent assault upon his spouse (except as an
accessory) unless the alleged offence consisted of, was
preceded
or accompanied by, or was associated with -
(a) assault occasioning actual bodily harm, or threat of
such an assault, upon
the spouse;
(b) an act of gross indecency, or threat of such an act,
against the spouse;
(c) an act calculated seriously
and substantially to
humiliate the spouse, or threat of such an act;
or
(d) threat of the commission of a criminal act
against
any person."
44. Ss.(5) was repealed in 1992 (Act No 9 of 1992 which came into operation
on 16 April 1992) and replaced
by other provisions unrelated to rape in
marriage. Section 73(3) remains. Accordingly, this case turns on s.73 as it
stood after
the 1976 amendment, but before that effected in 1992.
45. While the effect of the 1976 amendments was to enable a prosecution to
be
brought in cases of alleged rape in marriage, and while the legal rules as to
proof of rape still turns on the elements identified
in s.48, in this case
amplified by s.73(5) as it then stood, the fact that the alleged rape occurs
during the course of a marriage
does introduce complications which are likely
to render the task of the jury somewhat more difficult.
46. Tensions brought about
by the relationship of the parties over a period
of time may well give rise to unstated motives which could possibly have a
bearing
on the willingness of a jury to accept a complaint of rape, for
example, in cases where there is a dispute over the custody of a
child, or
where one party wishes to terminate the relationship against the wish of the
other.
47. It must be said also that the
opportunity of abuse by one partner of the
other may be fostered by a familiarity born of a relationship extending over a
period
of time. No doubt the jury must pay heed to the fact that women are
prone to be more vulnerable to physical abuse than the husband,
and may well
feel locked into a relationship which has become untenable. Such
circumstances may have to be taken into account where
there is a failure to
make an early complaint.
48. Furthermore, an allegation of rape said to have occured during the course
of
a marriage will inevitably be made in the wake of a failed relationship.
In such a situation, almost invariably there will be a polarisation
of the
evidence of the parties to the marriage, and a tendency on both sides to
attempt to justify their own position in the breakdown
of the marriage.
49. However, consistently with the view taken by the High Court in Longman, a
wife should not be regarded as a
member of a class of "suspect witnesses", or
for that matter, a class of "specially trustworthy witnesses". But with
respect to
the judge's discretion to give a warning of the kind now in
question, it seems to me that the fact that the parties are married may
well
give rise to circumstances prompting a need to warn the jury of the
possibility that underlying motives of the kind to which
I have referred might
have given rise to invention.
50. Turning to the passage from the learned trial Judge's summing up which is
the subject of the first question, in my opinion, taken as a whole, that
passage embodies an error in law. The first paragraph of
the passage, where
the learned trial Judge warns the jury to be "especially careful in
considering evidence in a case where sexual
allegations are made" is followed
by the comment that "experience has taught the judges that there have been
cases where women have
manufactured or invented false allegations of rape and
sexual attack". Such a direction is contrary to the view expressed by the
High
Court in Longman that: "...alleged victims of sexual offences as a class are
not regarded by the legislature as suspect witnesses
and judges should no
longer warn juries that allegations of sexual offences are more likely to be
fabricated than any other classes
of allegations."
51. The following remark by the trial judge that: "It (an allegation of
rape) is a very easy allegation to make.
It is often very hard to
contradict", was, in my view, also erroneous. It is true that such a comment
has been commonplace in charges
to juries over many years. But notwithstanding
the dictum of King CJ in Pahuja (1987) 49 SASR at 199, where he refers to "the
ease
of making an allegation and difficulty of refutation", and the fact that
this particular warning as described in Hale Pleas of the
Crown was approved
by the High Court in Kelleher (supra), in my opinion, with respect, after
Longman, such a direction should no
longer be given.
52. In Longman, Deane J said (168 CLR 100), after referring to the trial
judge's observation to the jury in that
case, "it's very easy to make a
complaint ... and it is very difficult ... for an accused person to prove
his innocence", went
on to say: "Not only in the context of the likely ordeal
of a complainant and the advantage which the criminal onus confers upon
the
accused, is the substance of that assertion open to question. The
generalisation involved in it underlays the rule of practice
which s.36BE(1)
has abolished."
53. Earlier in his judgment (168 CLR 94) he had commented:
"...I do not think that the direction
should be
explained by reference to 'the ease with which the
charge is made and the difficulty which may attend its
rebuttal'.
The distress and even humiliation to which a
complainant in a sexual case is commonly subjected seem
to me to make the first
limb of that explanation
inappropriate, particularly when sexual assault within a
family unit is involved. The second limb
seems to me to
run the risk of diverting the jury's attention from the
proper working of the onus of proof in a criminal
trial."
54. Although the other judges of the High Court in Longman do not expressly
advert to the matter, their reasoning is
in terms which would support the
conclusion reached by Deane J.
55. The anecdote which follows in the next paragraph of the passage
in His
Honour's summing up in this case was inapt and served to compound the error of
law to be found in the preceding passage.
The facts in the anecdote bore no
resemblance to any of the evidence in the case. The anecdote had the tendency
to distract the jury
from a proper consideration of the facts of the case
before them, and at the same time wrongly to emphasise that women making
sexual
allegations fall into a special category of unreliable witnesses.
56. This is not to say that there were no features of the case
which might
justifiably have given rise to a warning of some kind or another. But when a
warning is given, notwithstanding the provisions
of s.34i of the Evidence Act,
it must be related to the special circumstances of that particular case said
to give rise to the need
to make the warning.
57. Of course, remarks made by a trial Judge in an endeavour to assist the
jury with their consideration of
the facts, even if misguided, may not give
rise to an error of law. However, the High Court in Longman has made it plain
that the
inadvisability of the trial Judge giving a "category" type warning
arises as a matter of implication from the enactment of s.34i(5),
and as such
it follows that contravention of the principles enunciated in Longman amounts
to an error of law.
58. I would answer
the first question "Yes".
The Second Question
59. The second question is as follows:
"(ii) Was it an error in law to direct
the jury in
relation to consent and persuasion in the terms that
were used, namely:
"Bear steadily in mind - I am sorry
to be repetitive -
it is for the Crown to prove the lack of consent.
"Consent" means free voluntary agreement to engage in
an
act of sexual intercourse at the time relevant.
Submission is not consent. Of course, you may run into
considering
in this case the question of, shall I say,
persuasion. There is, of course, nothing wrong with a
husband, faced with his
wife's initial refusal to engage
in intercourse, in attempting, in an acceptable way, to
persuade her to change her mind,
and that may involve a
measure of rougher than usual handling. It may be, in
the end, that handling and persuasion will
persuade the
wife to agree. Sometimes it is a fine line between not
agreeing, then changing of the mind, and consenting.
You will bear that in mind when considering the totality
of the evidence about each act of intercourse." (Summing
up
pages 12-13).
60. It would appear that the learned trial Judge felt it necessary to say
something on the topic of what he described
as "persuasion", having regard to
the evidence of the accused that there were times when he did endeavour to
persuade M to have intercourse
with him, and when he admitted in the passages
of evidence to which I have referred that his attempts at persuasion sometimes
took
a physical form. There was certainly specific evidence by the accused
that he attempted to persuade his wife to have intercourse
with him on the
occasion identified with respect to the incidents the subject of counts 5 and
6. His denials of the other counts
would appear to be more general in nature
and are to be inferred from his evidence that he on no occasion had
intercourse with M
against her will, that he did not press her to indulge in
any act of fellatio, and that he had not had anal sex with her.
61. If
his case had rested on those general denials, and were it not for his
evidence concerning counts 5 and 6, it may well be that there
was no reason
for the learned trial judge to have referred to the question of "persuasion"
at all. In those circumstances, it might
simply have been a matter for the
jury to weigh up on the one hand an allegation of intercourse without consent,
and on the other
a denial of non-consensual intercourse. But there was a body
of evidence given by the accused explaining his increasing frustration
at what
he perceived to be M's frigidity and his attempts sexually to arouse her. It
was open to the jury to consider on the whole
of the evidence, and
notwithstanding the accused's denials of forced intercourse, that some such
process may have lay behind M's
allegations the subject of all of the counts.
In that situation it was no doubt proper for the learned trial Judge to offer
some
guidance to the jury as to how they should approach a situation where a
husband attempts to persuade his wife, who has refused intercourse,
to change
her mind.
62. It was perfectly correct for the learned trial Judge to state, as he did,
"submission is not consent".
The law is clear that consent must be freely
given, and acquiescence to intercourse by reason of any threat or duress may
properly
be regarded as negativing consent for the purposes of the law of
rape. Whether or not consent has been freely given is a question
of fact for
the jury to determine, having regard to all the circumstances. The question
is not concluded against the accused simply
by reason of the fact that there
was an initial refusal to consent to intercourse. Even following such a
refusal there may be a
freely given consent after further dealings between the
parties. True it is that the difference between submission and consent can
be
a fine line. But the distinction at law is clear, it is well supported by a
long line of judicial authority, and it is for juries,
properly instructed, to
deal with the matter.
63. Returning to the passage in question from the learned trial Judge's
summing up,
if the words: "There is nothing wrong with a husband faced with
his wife's initial refusal to engage in intercourse in attempting,
in an
acceptable way, to persuade her to change her mind", had stopped there, there
would have been no error of law, or any other
reason to doubt the propriety of
the direction. However, the problem arises because of the following words:
"...and that may involve
a measure of rougher than usual handling. It may be
that in the end, handling and persuasion will persuade the wife to agree."
64.
The difficulty which that passage poses is that it suggests to the jury
that a consent born of "rougher than usual handling" may
be a valid consent.
For the matter to be put in that way was apt to lead the jury into error.
65. Of course, consensual "rougher
than usual handling" would not vitiate
consent for the purposes of the law of rape. No doubt in some relationships a
degree of rough
handling or horseplay might be regarded by both parties as an
acceptable prelude to intercourse. Consensual sexual behaviour between
humans
and the preliminaries to it can take a variety of forms. But there was no
evidence in this case on either side of consensual
"rougher than usual
handling". A direction in the terms in question was apt to convey the
impression that consent might be induced
by force, against the will of the
victim. That has never been the law. It seems to me that the sentence, which
includes the words
"measure of rougher than usual handling" is so close to the
earlier passage where His Honour defines the word "consent" that it may
well
have been understood by the jury as part and parcel of that definition.
66. Looking at the matter in that way, in my opinion,
that direction also
involved an error of law.
67. I would answer the second question "Yes."
JUDGE3
DUGGAN J This case stated
requires the court to consider whether the learned
trial judge erred in law in two of the directions he gave in the course of his
summing up in a rape trial in which it was alleged that a husband had raped
his wife. The relevant facts are set out in the judgment
of Perry J.
2. First, it was argued by the Solicitor-General that the trial judge erred
in law in warning the jury in the way in
which he did of the danger of false
allegations in sexual cases. According to the argument any requirement for a
warning as to the
danger in all sexual cases of acting on the evidence of
uncorroborated complainants was removed by s.34i(5) of the Evidence Act, 1929.
It was further argued that such a warning should not be given and that, in any
event, the terms in which the warning was given in
the present case were
contrary to the law as modified by s.34i(5).
3. The immediate purpose of the section was to abolish the rule of practice
that, as a matter of course, a judge should warn a jury
that it was dangerous
to convict on the uncorroborated evidence of the complainant in a sexual case.
The reason usually given for
the warning was that human experience has shown
that such allegations are easy to fabricate and difficult to refute. (R v
Henry
and Manning (1968) 53 Cr App R 150 at 153-154). The principal
difficulty with a rule of this nature lies in its general application.
Before
the amendment to the Evidence Act the direction had to be given in many cases
far removed from the purpose claimed for its justification. Furthermore it
placed the
complainant in a special category of suspect witnesses. As Deane J
observed in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 93:
"The effect of that is that a requirement that a jury be
warned that it is dangerous to act on
the uncorroborated
evidence of a complainant inevitably represents a strong
discouragement to the intelligent victim of a
sexual
assault, particularly one committed in a domestic
context where corroboration of the complainant's
testimony in
relation to all elements of the alleged
offence is unlikely, against complaining to the
authorities or co-operating in the
prosecution of the
offender."
4. The rule also conferred a protection upon the accused in all sexual cases.
5. Although s.34i(5) does not expressly forbid the giving of a warning in the
traditional terms, it is a denial of the rule's fundamental premise that
the
warning should be given in all sexual cases because the danger it seeks to
address is present in all such cases. Accordingly
it is my view that any
direction to a jury which is inconsistent with the statutory rejection of the
basis of the former rule is
wrong in law.
6. This is not to say that the section precludes the giving of a warning
appropriate to the facts of the particular
case or that it prevents the trial
judge from commenting on issues relevant to credibility such as motive. The
logic which justifies
the abrogation of the old requirement to give the
warning in all cases also supports the view that alleged victims of sexual
offences
are not to be placed in a special category of witnesses immune from
the usual scrutiny as to credibility. In R v Pahuja (1987) 49
SASR 191 at 199
King CJ in a passage which was approved in the majority judgment in Longman
said:
"Although I consider that
s 34i(5) has had the effect of
abolishing the rule of law or practice relating to
corroboration warnings in sexual cases, I cannot
read
into it some of the wider implications attributed to it.
It does not confer upon the evidence of an alleged
victim
in a sexual case any particular legal status, nor
inhibit the triers of the facts in a sexual case from
weighing that evidence
in the usual way, having in mind
such aspects of human nature and behaviour as they
consider to be material for that purpose."
7. And in the same case the learned Chief Justice, in a passage cited with
approval by Deane J in Longman, said (p.198):
"In
many sexual cases prudence will dictate the giving
of some appropriate caution or warning. If, since the
enactment of s 34i(5), a judge cautions or warns the
jury as to their approach to the evidence of an alleged
victim of a sexual offence, he does
so as part of his
duty to provide guidance to the jury as to the evidence
and the facts. He is free to frame the caution
or
warning in such terms as he sees fit. It must be clear
to the jury, either from a specific direction or at
least
from the general tenor of the summing up, that
they are free to reject the judge's suggested approach
to the evidence of
the alleged victim or any views which
he might express on such questions of fact. He must not
convey the impression that
the caution or warning is
given as a matter of law. Subject to those
considerations, he may give the jury a warning in the
conventional terms or in any other terms which commend
themselves to him."
8. It remains appropriate in a sexual case, therefore,
for a trial judge to
canvass with the jury issues such as motives for fabrication, the fact (if it
be so) that the case is one of
oath against oath and any other factors which
might touch upon credibility. In many cases of alleged rape within marriage,
for example,
there may well be reference in the summing-up to the
cross-currents of emotion which could be relevant to the assessment of the
evidence
of the principal participants. In some of these cases it may be
necessary to go as far as warning the jury of the dangers of convicting
on the
evidence in the case. But, as I have attempted to explain, the justification
for such a warning would have to depend upon
circumstances beyond the mere
fact that the complainant was a witness in a sexual case.
9. Applying these considerations to the
warning given to the jury in this
case, it is clear that the learned trial judge began his direction by
conveying to the jury that
this was a warning which was required as part of
the judge's duty. The statement "the charges which he is fighting ... are of
a
sexual nature and I must warn you to be especially careful in considering
the evidence in a case where sexual allegations are made"
reflects the
compulsory nature of the former rule and, in my view, resulted in a
misdirection.
10. The learned trial judge then
went on to say "Experience has taught the
judges that there have been cases where women have manufactured or invented
false allegations
of rape and sexual attack. It is a very easy allegation to
make. It is often very hard to contradict". No other reason for the
warning
was conveyed to the jury and so its purpose was identified with the logic of
the previous law. For reasons which I have
given a direction of this nature
is inconsistent with the abrogation of the previous rule of practice.
11. To my mind the anecdote
which the learned trial judge then related to the
jury was flawed for the same reason. His Honour said that the story
illustrated
the fact that women have manufactured or invented false
allegations of rape and sexual attack in the past and that such allegations
are easy to make up and difficult to refute. It is this generalised approach
which s.34i(5) aims at removing from jury directions. In the joint judgment
of Brennan, Deane and Toohey JJ in Longman's case their Honours said
(p.85):
"The mischief at which the provision appears to have
been aimed is the adverse reflection which a warning
'required
by any rule of law or practice' casts
indiscriminately on the evidence of all alleged victims
of sexual offences, the vast
majority of whom are women,
and the corresponding protection which the giving of a
warning confers on an accused in all cases
of sexual
offences. It is evidence that the legislature regards
the reflection as unwarranted and the protection as
unjust. If the alleged victims of sexual offences, as a
class, are not regarded by the legislature as suspect
witnesses,
judges should no longer warn juries that
allegations of sexual offences are more likely to be
fabricated than other classes
of allegations."
12. I should add that a dramatic story such as this which the jury are told
is not fictional can also have an effect
beyond illustrating the importance of
the warning to exercise caution. I think there is a danger for the lay mind
to attempt to
resolve the case being tried by reference to the facts of a case
which should have led to an acquittal. This is one of the reasons
why counsel
are usually prevented from referring to the facts and results of cases other
than the one being tried when addressing
a jury.
13. For the reasons which I have given earlier, however, I am of the view
that it was wrong in law to include the anecdote
as part of the direction.
14. I turn then to the second point raised by the case stated. It would
appear that the learned trial
judge decided to direct the jury on the topic of
persuasion because of some general comments which the accused made concerning
his
attempts from time to time to persuade his wife to have sex with him.
However this does not seem to have been an issue in the case
of any of the
offences charged in the information. Accordingly I doubt that the directions
impugned in the second question posed
in the case stated would have had any
influence on the verdicts returned by the jury. Nevertheless the question
asked of the court
is whether the directions given in relation to consent
disclose an error in law.
15. It cannot be disputed that the forceful handling
of one person by another
without the consent of the person so handled is an assault at law. This
proposition applies equally to
persons who are husband and wife. If the force
used results in submission to some form of sexual activity the law does not
regard
that submission as a valid consent to that activity. As the learned
trial judge told the jury, in the case of rape consent means
a free and
voluntary engagement in the act of sexual intercourse at the relevant time.
16. Although the application of these principles
to particular facts may give
rise to difficulty, particularly in a case involving husband and wife, the
principles themselves are
uncontroversial and are applied as part of the
everyday practice of the criminal jurisdiction. They are, of course, well
known to
the trial judge.
17. The difficulty in the present case arises from the fact that, after
correctly stating these principles, the
learned trial judge sought to explain
the difference in law between submission and consent and in doing so said:
"Of course,
you may run into considering in this case
the question of, shall I say, persuasion. There is, of
course, nothing wrong with
a husband, faced with his
wife's initial refusal to engage in intercourse, in
attempting, in an acceptable way, to persuade
her to
change her mind, and that may involve a measure of
rougher than usual handling. It may be, in the end,
that handling
and persuasion will persuade the wife to
agree."
18. (I have emphasised the words "in law" because the only relevant values
judgment made by his Honour on this issue in the course of his summing up was
his comment "the community deplores rape and aggressive
sexual conduct against
unwilling women".)
19. His Honour has explained in his report that when he used the words "in an
acceptable
way" in the above passage he meant "acceptable to the wife". If he
had used the latter expression most of the difficulties with
the direction as
a statement of the law would have evaporated. But in my view his Honour used
a form of words which did not convey
his intended meaning. The summing-up
must be viewed objectively by having regard to the manner in which the
direction would have
been understood by the jury. The trial judge told the
jurors they may have had to consider the matter of "persuasion". He then
spoke of an attempt to persuade "in an acceptable way". As he was directing
the jury on the law I think that the jurors may well
have understood him to be
referring to conduct which was acceptable in law.
20. His Honour then referred to the fact that the persuasion
may involve a
measure of "rougher than usual handling". In my opinion this reference in the
context of persuading a reluctant participant
is more consistent with the
notion of force than with vigorous handling consented to by the wife. Of
course, as his Honour told
the jury, the line may be a fine one and this is
illustrated by the passage in the accused's cross-examination which appears to
have
led to the direction. The cross-examination proceeded as follows:
"Q. She's given evidence in this court that on a number
of occasions you would physically force her to have
sexual intercourse with you. Did anything like that
ever happen?
A. I pressured her to have sex, yes.
Q. When you say you pressured her to have sex, what do
you mean by that?
A.
Basically, I suppose it could be considered
emotional blackmail. Just, stating, what a husband and
wife, I'd say there
should be some form of sexual
contact between us.
Q. How would that, as far as you were concerned,
emotionally pressure
her into having sex?
A. She felt guilty and quite often conceded to my
request.
Q. Did you every physically force yourself
upon her?
A. It could be looked at that way, yes.
Q. In what way could it be looked at like that?
A. Whilst trying
- trying to get her interested I'd
sort of sit on her, not actually sit on her, but have
myself astride of her, on my knees,
on the bed, trying
to play, trying to be playful with her.
Q. And what sort of things would you do?
A. I'd try to get
her interested, touch her, tried to
smooch her, try and kindle some sort of response from
her.
Q. You have told the
ladies and gentlemen on some
occasions, she would be in it, up to a point, and then
on other occasions she would flatly reject
it?
A. Yes. There were times when she was quite happy and
she let me know she couldn't go any further, and other
times
she wasn't interested, full stop."
21. I repeat, however, that the words used by the trial judge are more likely
to have conveyed
the impression that the law condoned a measure of force to
bring about consent and, viewed in this way, it must be said that the
direction was contrary to law.
22. I would answer "Yes" to both questions.
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