QUESTION
LS 212 Evidence and Proof
Assignment Due: April 10 2012
The accused, Professor Alistair Smith and the complainant Ms Suzanne Jones, a postgraduate
student, were at the School of French at the University of Guneedin Christmas Party in early
December 2008. Both were significantly affected by alcohol. Towards the end of the evening
they adjourned to another room where the accused kissed Ms Jones and unsuccessfully attempted
to have sex with her. Ms Jones claims that despite attempting to resist the accused’s further
advances, Professor Smith then forced her to have sexual intercourse with him without her
consent, and knowing she did not consent.
Professor Smith was committed to stand trial in the District Court in Sydney on an indictment
under the Crimes Act 1900 (NSW), of having sexual intercourse with Ms Jones without her
consent. The prosecution calls two witnesses, who give evidence at trial, namely Ms Brown and
Ms Green. The evidence of Ms Brown, who was a secretary on staff in the School of French is “I
saw Ms Jones coming from the toilet, and that she was weeping uncontrollably and was very
distressed”. When I asked her “what was wrong?” Ms Jones replied: “Professor Smith raped
me”. Ms Green is a friend of Ms Jones and is also a postgraduate student. What Ms Jones told
Ms Brown was repeated to Ms Green a few hours later.
You are briefed to appear for Professor Smith. The only issue for the jury is likely to be whether
Ms Jones consented to the sexual intercourse.
At trial, Ms Brown gives evidence entirely consistent with her statement. On the other hand, Ms
Green, who is doing her PhD with the accused as her supervisor, repeatedly answers: “I can’t
remember” when asked questions about her recollection of the event. Ms Green also does not
confirm the contents of her earlier statement.
In the courtroom what possible objections might you take against the evidence of Ms Brown and
Ms Green.
SOLUTION
In the given assignment we have been briefed to appear for Prof. Smith who has been accused of having intercourse with Ms. Jones without her consent at a party in early December, 2008. Prof. Smith faced trial under the Crimes Act, 1900 for having sexual intercourse with Ms. Jones without her consent. The Evidence of the Complainant is recorded under Section 66 of the Evidence Act 1995. The Evidence Act 1995 requires that the complaint should have been made at a time when the memory of the assault/intercourse is still fresh in the mind of the complainant. This requirement is added for the offences, proceedings for which were started after 1st January, 2009.
Here it is important to note that the hearsay rule of evidence provided in s 55 of the Evidence Act does not apply if the case falls within the purview of section 66 Evidence Act. The Evidence Amendment Act 2007 has repealed the Criminal procedure Act but the repeal is not applicable in case of the proceedings that have been started before 1st January 2009. In the present case, two witnesses were called by the prosecution who gave evidence at the trial. The first witness was Ms. Brown who was a secretary of staff in the School of French at the University. She claimed that she saw Ms. Jones coming out of the toilet weeping uncontrollably and seemingly very distressed. Ms. Brown said that on being asked Ms. Jones told her that Prof. Smith has raped her. Almost the same testimony was given by Ms. Green who is a good friend of Ms. Jones and also a postgraduate student. She said that the same thing was told to her by Ms. Jones a few hours later. During the trial, the evidence of Ms Brown was consistent with her statement but on the other hand Ms Green repeatedly gave answers like “I can’t remember” when she was asked about the incident. Incidentally Ms. Green is doing her PhD with the accused as well supervisor. She failed to confirm the contents of earlier statement. The evidence of the complainant becomes the evidence of the facts mentioned in the complaint subject to the order under s 136 of the Evidence Act if any limiting the use of such statement. In the present case much reliance has been placed by the Crown on what has been said by the complainant. During the trial, the only issue under consideration for the jury is likely to be the consent if any given by Ms. Jones to the sexual intercourse.
First of all we have to keep in mind that there is a distinction between the treatment of offence of sexual intercourse without consent committed before 1 Jan. 2008 and those committed after 1 Jan 2008. According to the Evidence Act the Crown has to prove beyond any reasonable doubt that the accused Prof. Alistair Smith had sexual intercourse with the complainant Ms. Suzanne Jones at Christmas party held at the school of French of the University of Guneedin in early Dec. 2008. The Crown is also required to prove that sexual intercourse took place without the consent of Ms. Jones and Prof. Smith knew that Ms. Jones had not consented to such intercourse.
Sexual intercourse has been defined under section 61 H of the Crime Act 1900. The next important question is that of consent. According to the Evidence Act, 1995, it not the responsibility of the accused to prove that the complainant consented to sexual intercourse but it is the responsibility of the Crown to prove to that there was no consent on part of the complainant for the sexual intercourse that occurred between them (DJS v R, 2010). The consent can be verbal or it can be expressed by actions also. Section 66 (2) of the Evidence Act requires that the behavior of the complainant should be such after the incident so as is expected from a victim of sexual assault. In case the behavior of the complainant is not such, there is a possibility that the complaint could be false. There should be a consistency between the conduct of the accused and the facts mentioned in the complaint. In case such a consistency is not present ion the conduct of the accused, there should be some reasons present which explain such a conduct.
It is also a basic principle of the law of Evidence that any inaccurate or false statement will not become true or accurate if it is repeated to many persons. Therefore the fact that the complainant narrated the incident to several witnesses would not make it true in itself. Similarly the absence of consent is also not required to be in words alone, it can be communicated through other means also. For example offering resistance to sexual intercourse can be termed as the absence of consent of the victim but the law specifically provides that it can not be taken as consent to sexual intercourse if the victim fails to offer physically resistance to intercourse (Section 61 HA (7) Crimes Act 1900). However consent obtained after persuasion will remain a valid consent if it is given voluntarily and without any fear. In the present case we can examine the circumstances and the evidence of the witnesses to see if the victim Ms Jones might have given consent to sexual intercourse after being persuaded by Prof. Smith. It is the responsibility of the Crown to prove that Ms. Jones did not consented to the act of sexual intercourse in the present case beyond reasonable doubt. The accused can not be said to be guilty of the offence if the Crown fails to prove that victim had not consented for the sexual intercourse (R vs. Mueller, 2005).
The provisions regarding knowledge of the accused about lack of consent on part of the complainant are mentioned in section 61 HA (3) Crimes Act 1900. The accused can be presumed to be knowing that the complainant is not consenting to the act of sexual intercourse if the accused
(i) Knows that the complainant does not consent.
(ii) The accused is reckless regarding the consent of the complainant or
(iii) The accused had no reasonable grounds to belief that the complainant has consented.
Proof of knowledge regarding lack of consent: Another important aspect in the present case is that the Crown has to prove beyond reasonable doubt that the accused had the knowledge of the lack of consent on part of the victim. Therefore proving lack of consent alone is not sufficient the Crown has to prove that the accused was aware of the lack of consent. Therefore in the present case we are more concerned with the actual knowledge of Prof. Smith regarding the lack of consent on part of the Ms. Jones. We can ask how the Crown is going to prove that Prof. Smith was aware of the fact that Ms. Jones had not consented to the act of sexual intercourse that took place between them after the Christmas party. The question becomes more important when the accused has not admitted any knowledge regarding the lack of consent by the victim. The Crown can suggest that from the circumstances of the case it can be easily concluded that Ms. Jones had not consented to sexual intercourse and the accused must have known that the victim was not consenting. Here the evidence of Ms. Brown can be examined who has said that she was told by Ms. Jones that Prof. Smith has raped her but even after the minute scrutiny of the Ms. Brown we can not infer that Prof. Smith had any knowledge regarding the lack of consent on part of Ms. Jones before sexual intercourse took place between them. Prof. Smith could have been under a belief though mistaken that Ms. Jones was consenting to having sexual intercourse with him.
The guilty state of mind for the offence of having sexual intercourse without consent depends on the fact that if the belief was honestly held by him and if Prof. Smith has reasonable grounds for such a belief. Therefore when we are not satisfied that the accused was aware of the lack of consent on part of victim the Crown has to prove some facts before the accused can be held guilty of this crime. The Crown has to prove that the accused, in this case Prof. Smith did not believe honestly that Ms. Jones was consenting to the act of sexual intercourse. The Crown has to further prove that if the accused held and honest belief of consent, there were no reasonable Crowns behind the belief (WO v DPP, 2009).
It is the responsibility of the Crown to prove that Prof. Smith have a guilty mind and as there could be a possibility that Prof. Smith was under an honest belief based on reasonable grounds that Ms. Jones was consented to the act of sexual intercourse, he can not be held guilty as the third element of this offence can not be made out which is the knowledge regarding the lack of consent by the victim. For determining if the Crown has been successful proving that the victim was not consenting, the steps taken by the accused to see if the victim was consenting to having intercourse with him must be taken into account (section 61 HA (3) (d) Crime Act 1900).
Section 108 (3) Evidence Act requires that the credibility rule mentioned in s 102 will not apply to evidence of an earlier inconsistent statement of the witness if the evidence of such statement has been admitted or it can be suggested expressly or impliedly that evidence given by such witness has been reconstructed or re-fabricated. Such re-fabrication or reconstruction can be either deliberate or otherwise or it may be a result of suggestion.
In the present case the evidence of Mr. Brown who was a secretary at the school of French has remained consistent but her testimony only says that she saw the complainant Ms. Jones coming out of the toilet, weeping uncontrollably and visible distress. On being asked Ms. Jones told Ms. Brown that she was raped by Prof. Smith. The testimony of the other witness Mr. Green who is a friend of the complainant Ms. Jones and also a post graduate student claimed that almost similar facts were repeated by Ms. Jones to her after a few hours. The evidence of Ms. Green did not remained consistent with her statement and in answer to many questions she said that she can not remember the events that took place at that time. As regards the evidence of Ms. Brown is concerned she only said that she was told by Ms. Jones regarding her rape by Prof. Smith. The issue of consent does not figure in the statement of the Ms. Brown from her statement it is difficult to find if Prof. Smith had any knowledge regarding the absence of consent on part of Ms. Jones before the act of sexual intercourse. No where in her statement Ms. Brown has said that Prof. Smith had any knowledge about the lack of consent or if Prof. Smith was so reckless in his behavior that he did not care for the consent of Ms. Jones and proceeded with the act of sexual intercourse or that the knowledge if any on part of Prof. Smith regarding the lack of consent was not based on reasonable grounds.
The Crown can also prove the guilty state of mind of the accused if it succeeds in proving that the accused was reckless. The Crown has to prove beyond reasonable doubt that there was sexual intercourse between the accused and the complainant and accused was reckless regarding the consent of the victim the law says that in such a case the accused will be presumed to have knowledge regarding the lack of consent on part of the victim (s 61 HA (3) (b) Crimes Act 1900). For establishing recklessness on part of the accused, Crown needs to prove beyond reasonable doubt that the state of the mind of the accused was such that he can not considered if the complainant was consenting or not to the act and just proceeded with the intercourse even though there was a risk that the complainant could not have consented to the act and such lack of consent would have been visible to any other person having similar mental capacity as that of the accused if they applied their mind to it. On the alternative the Crown can also prove that the accused was in such a state of mind that though he realizes the possibility of the lack of consent on part of the victim he still went ahead with the act without caring for any consent or lack of it (ES v R, 2010).
Under the given circumstances, prosecution has to prove that Prof. Smith was in such a state of mind that he went ahead with the act of sexual intercourse without caring for the fact that Ms. Jones might not be consenting to the act. The facts provided to us show that both Prof. Smith and Ms. Jones under significant influence of alcohol. Therefore it is the responsibility of the Crown to prove that either Prof. Smith had knowledge regarding the lack of consent on part of Ms. Jones or Prof. Smith acted recklessly so as to not to care for the consent or the lack of it and proceeded with the act. Here it is important to note that any voluntary ingestion of alcohol or a non prescribed drug can not be taken into account while considering what was done by the accused.
The fact that Prof Smith had earlier unsuccessful try to rape Ms. Jones can not be treated as other acts which can support a finding of the accused having sexual interest in the complainant unless the occurrence of such incidence has been prove beyond reasonable doubt and it can be concluded from the act that accused possessed the tendency alleged by the Crown (DJS v R, 2010). The consent of a victim can be negated under the following circumstances (i) the person lacks the capacity to consent (ii) the person did not have the opportunity to consent (due to being unconscious or asleep) (iii) consent obtained under threat of force or terror (iv) consent of a person detained unlawfully. As in the present case no such circumstances were present it is the responsibility of the Crown to prove that the complainant had not consented to act of the sexual intercourse.
References:
R v Mueller (2005) 62 NSWLR 476 at [3]–[4] and [42]
S 61HA(3)(d) Crimes Act 1900]
S 61HA(3)(b)]
DJS v R [2010] NSWCCA 200 at [55]
ES v R (No. 1) [2010] NSWCCA 197 at [46]
Banditt v The Queen (2005) 224 CLR 262 at [37]
South v R [2007] NSWCCA 117 at [30]
WO v DPP (NSW) [2009] NSWCCA 275 at [80]
JH80
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