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  • Paul Jackson

LA2018: Criminal Law B Semester II Assignment.

This essay was the major assessment for LA2018 Criminal B at JCU Cairns in 2017. The assignment was worth 30% of course grade, and focused on consent; identity of a penetrator; the subjective and mixed element of not wholly objective (subjective and objective elements) of mistake of fact, summary offences for public nuisance; defences, and application of principles of statutory interpretation. With such a challenging subject, and challenging material, the opportunity to play with words and offer some level above sombre seems to help an argument flow.

This essay assessment grade: Distinction

Paul's LA2018 course grade: Distinction

Consent to penetration; identity of the penetrator

Kelly has alleged rape against Wayne. Rape is defined in s 349 Criminal Code 1899 (Qld) (the Code) as essentially penetration of a person, by a penis or anything, without consent freely and voluntarily given.[1] It is clear from the facts that Wayne has penetrated[2] Kelly, so the issue is consent. The ratio decidendi of the Victorian common law decision in R v Papadimitropoulos (1957) 98 CLR 249 was applied in the Queensland decision R v Pryor (2001) 124 A Crim R 22. In both these cases the identity of the penetrator went to the root of the argument. In Pryor the complainant was raped in the hallway of her house, late at night, while drunk, believing the penetrator to be her sexual partner Graham who was actually asleep in bed. Papadimitropoulos and Pryor both essentially held that the identity of the penetrator was part of the consent required to be given by Kelly, and “such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing.”[3]

In Pryor Byrne J draws on the “essential inquiry” from Papadimitropoulos that “the identity of the man…is part of the nature and character of the act to which the woman’s consent is directed."[4] Therefore Pryor is Kelly’s primary case authority to answer the question of consent and identity in Queensland, along with the positive definition of consent in the Code since 2000,[5] and R v Winchester [2014] 1 Qd R 44, which together make the statutory factors vitiating consent in s 348(2) largely redundant. The history of law informing this approach to consent, and the identity of the penetrator, were canvassed by Williams JA, Byrne and Dutney JJ in the Pryor decision: a history of law developed since William the Conquerer,[6] the decision in Clarence (1888) 22 QBD 23,[7] and the importation of this thinking into the Code by Sir Samuel Griffiths.[8]

Kelly thought the man actually in the Bee suit, Wayne, was her partner Tony, and it was to Tony that Kelly believed she was giving consent to sexual intercourse when she said “would you ever be my, would you be my F*#*ing boyfriend”.

Kelly’s mistake of fact of identity, leading to Wayne’s mistake of fact of consent

Kelly’s mistake of fact about the identity of Wayne provides Wayne several grounds of defence to rape. Firstly, Wayne could argue that he believed there was no absence of consent at the time of penetration[9], and also that Kelly’s sexually suggestive proposition “would you ever be my, would you be my F*#*ing boyfriend” may suggest consent. However, this initial proposition cannot be relied upon by a stranger like Wayne as an exercise of the theoretical “opportunity to consent”[10] from Kelly in advance of penetration. A temporal connection between consent and penetration remains a must.[11] Secondly, Wayne can argue that although Kelly may have been “slightly under the influence of alcohol” that does not necessarily remove Kelly’s capacity to consent to sex.[12] Thirdly, and one of the difficulties with prosecution of rape, is that the evidentiary burden of proof is on the Crown to negative beyond reasonable doubt that there was no honest, and reasonable, but mistaken belief[13] that consent was freely and voluntarily given by Kelly to Wayne.

With ‘fancily dressed balls’, and slightly intoxicated people, really who but regular attendees of these events might know the sexual freedom and liberated attitudes that abound. Even the notion that Kelly entertained the idea of sex with her boyfriend in a bedroom off to the side of a party shows a somewhat liberated approach by Kelly to consenting to sex at a party, in someone else’s house, and that only assists Wayne’s grounds of defence. Therefore, Wayne appears to have reasonable grounds, given the facts and the circumstances of Kelly’s proposition, upon which to reasonably believe Kelly willingly and voluntarily propositioned him, and offered consent for sex. There has been some confusion about the test for this reasonable belief, however it appears somewhat settled that the test of reasonableness is comprised of a subjective, and a mixed element.[14] Subjectively, that Wayne acted under an actual belief in the state of things[15], and a mixed element, which is not judged by the reasonableness of the ordinary person. The mixed element requires objectively that Wayne’s belief was reasonable, and subjectively that his belief was reasonably held, with reference to Wayne’s personal attributes and characteristics that may have affected his perception of the circumstances in which he found himself.[16] The Crown must negative that Wayne’s belief was not reasonable according to this subjective + mixed element test.

Mistake of fact that Kelly and Wayne were not visible in a private place; what is an interference; what is a public place.

Section 6(2) Summary Offences Act 2005 states:

(2) A person commits a public nuisance offence if— (a) the person behaves in— (i) a disorderly way; or (ii) an offensive way; or (iii) a threatening way; or (iv) a violent way; and (b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

Kelly and Wayne were evidently spotted by a neighbour walking down a pathway that ran between the neighbour’s house, and the party host’s house, which may see Kelly and Wayne face a charge of public nuisance under s 6(2)(b) of the Summary Offences Act 2005 (Qld) (SOA). The case in point that informs what may happen in court is Andrews v Rockley [2008] QDC 104. Mr Andrews had been found guilty under s 6(2)(b) SOA on one count of public nuisance. Mr Andrews had been spotted, by Police, nude sunbathing on a public beach, although Mr Andrews had taken steps to hide himself away from the public. Back from where vehicles were traversing, and behind his vehicle with an opened door and an erected umbrella to shield anyone’s view. It was through a gap in these erections that Mr Andrew’s penis was alleged to have been spotted and cause a public nuisance. On appeal the conviction was set aside as Mr Andrews was found to have been operating under an honest and reasonable, but mistaken belief, that his flaccid penis was not visible to the public.[17] The facts of Andrews and Rockley would provide the first ground of defence, in a Queensland District Court at least, for Kelly and Wayne that they may have had a mistaken belief, or even an ‘undisplaced presumption’[18] of a positively held belief, that their copulation was not visible.

Kelly and Wayne’s second ground of defence against a charge under s 6 SOA may be found in the interpretation of ‘interfere’ within s 6. Is being able to see Wayne and Kelly copulating through a gap in the fence behaviour that actually “interferes, or is likely to interfere” with the peaceful passage through, or enjoyment of, a public place by a member of the public? A lack of interference from acts of nuisance committed by others are declared goals of the division according to the objective of division 1, and of s 6(2)(b) SOA.[19] No definition for ‘interference’ is found in either the SOA dictionary, or the Code, so looking to the Macquarie Dictionary ‘interference’ is defined as a noun: the act of interfering. Interfere itself is defined in the Macquarie Dictionary as ‘to interpose; intervene; to take part in the affairs of others; to meddle.’ None of those synonyms would appear, by the rule of interpretation under the doctrine of noscitur a sociis, to suggest that Wayne and Kelly’s copulation, observed by a neighbour through a hole in the fence, as being a potential interference or meddling with the neighbour’s peaceful passage through the pathway between the two houses.

A third ground of defence against a charge under s 6 SOA revolves around the interpretation of ‘pathway’. Is the ‘pathway’ running between the neighbour’s house, and the party host’s house a public place? To satisfy the public place element of the offence the pathway would need to be confirmed as a public place. The only reference to pathway in the SOA is a definition specific to s 26, which discusses the throwing of an object that may endanger the safe use of a vehicle. This definition is not useful to s 6.

So what is a pathway? Section 59 of the Local Government Act 2009 (Qld) provides a definition that a road is land dedicated to public use, and a road includes, under s 59(2)(c) a footpath or bicycle path, however under s(59)(3)(b) a road does not include a public thoroughfare easement.

Simply put if the pathway is on private property, or is not a public footpath, or is not regarded as a public thoroughfare easement, there may be considerable and warranted discussion as to whether any public nuisance charge may be laid at all, if the public place element of the offence cannot be made out. Without the aid of a clear statutory classification of the pathway, the public nature of the pathway may be a fact for the jury to decide. That discussion is all before commencing to discuss the element of what is offensive, and if the neighbour is a member of the public, if on private property.

A fourth ground of defence may be whether, in fact, the copulating bee and the bird seen by the neighbour was actually Wayne and Kelly. It may be entirely possible that in another bedroom, also visible to the pathway, Tony was in his bee suit copulating with another bird, while Kelly was copulating with her mistaken bee.

Ben’s frisk of Kelly; evaluating indecency

Ben’s frisk of Kelly may expose Ben to a charge of sexual assault under s 352 of the Code, or in the alternative, s 4 attempt[20] of s 352. For the latter, it would depend whether there was a fulfilment of any purpose Ben may have had. That is a question of fact for the jury. For the former, as the facts do not suggest an act of gross indecency,[21] the Crown would need to prove that Ben’s touching of Kelly’s breasts was indecent, and that there was an assault according to s 245 of the Code. The Queensland authority and case in point here is R v Jones (2011) 209 A Crim R 379. As with Jones, there would unlikely be any dispute that Kelly’s breasts were touched, which may satisfy the element of s 245 assault. The issue would be indecency. The facts of Jones revolved around a male ambulance officer performing an ECG on a patient at her home. In the process of administering the ECG he touched the patient’s breasts when applying the ECG pads near, or to the side of, her breasts. The Queensland Court of Appeal confirmed that it should have been left to the jury to decide what was indecent in that case, according to uncontested evidence that raised doubt to the motive of the ambulance officer.[22] Jones, among other cases, referred to Drago[23] where indecency in the circumstances of that case amounted to an element of moral turpitude. Jones also discussed McBride[24] which discussed the earlier case of Bryant.[25] The word indecent has no legal meaning,[26] and the essential question of whether Ben’s touching of Kelly’s breasts was indecent would need to be left to a jury. It is a question of fact, not law. Ben’s motive or purpose are not “element[s] of an offence under s 352, which, by s 23, has no role, and motive as a factor in characterising the assault as indecent or not.”[27] The summary is that a jury needs to decide, given all admissible facts and circumstances, whether Ben’s act was indecent, whether it was unequivocally of a sexual nature[28], or grossly indecent,[29] and a jury may be troubled if asked to decide the issue of indecency in a vacuum.”[30]

[1] Section 348 Criminal Code 1899 (Qld).

[2] R v Mayberry [1973] Qd R 211.

[3] R v Pryor (2001) 124 A Crim R 22 at 28; R v Papadimitropoulos (1957) 98 CLR 249 at 260-261.

[4] R v Pryor (2001) 124 A Crim R 22 [25].

[5] Criminal Law Amendment Act 2000 (Qld) in force from 27 October 2000.

[6] R v Pryor (2001) 124 A Crim R 22 [5].

[7] R v Pryor (2001) 124 A Crim R 22 [6].

[8] R v Pryor (2001) 124 A Crim R 22 [31],[70].

[9] ISJ v The Queen 226 A Crim R 484.

[10] W O v Director of Public Prosecutions [2009] NSWCCA 275 [71].

[11] ISJ v The Queen 226 A Crim R 484; Case stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259.

[12] R v Cannell [2009] QCA 94; R v O’Loughlin [2011] QCA 123 38]-[39]; R v Mrzljak [2005] 1 Qd R 308,321.

[13] Section 24 Criminal Code 1899 (Qld).

[14] Aubertin v State of Western Australia [2006] 33 WAR 87 [43]; R v Mrzljak (2004) 152 A Crim R

[15] R v Pacino (1998) 105 A Crim R 309 at 317-320 per Kennedy J.

[16] Aubertin v State of Western Australia [2006] 33 WAR 87 [43]; R v Mrzljak (2004) 152 A Crim R; Paul A Fairall and Malcolm Barrett, Criminal Defences in Australia, (LexisNexus Butterworths Australia, 5th ed, 2017) 66.

[17] Andrews v Rockley [2008] QDC 104. The conflicting testimony of the two police officers at trial also created reasonable doubt, according to Rackemann DCJ, about the public visibility of Mr Andrews’s penis.

[18] Libke v The Queen (2007) 230 CLR 559.

[19] 6(2)(b) Summary Offences Act 2005.

[20] R v Barbeler [1977] Qd R 80.

[21] Whitehouse [1955] QWN 100.

[22] R v Jones (2011) 209 A Crim R 379 at 380.

[23] Drago v The Queen (1992) 63 A Crim R 59.

[24] R v McBride [2008] QCA 412.

[25] R v Bryant [1984] 2 Qd R 545 at 549-555.

[26] R v Bryant [1984] 2 Qd R 545.

[27] R v Jones (2011) 209 A Crim R 379 at 388 citing Drago v The Queen (1992) 63 A Crim R 59 at 70-73.

[28] R v BAS [2005] QCA 97.

[29] Whitehouse [1955] QWN 100.

[30] R v Jones (2011) 209 A Crim R 379 at 388 [31].

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