‘Rape myths’ and a ‘reasonable belief’ of consent R v Lazarus [2017] NSWCCA 279

Abstract

Judicial directions in rape trials are designed to emphasise to jury members the importance of negating consent or that the accused believed on reasonable grounds that the complainant consented. After a jury convicted the accused in R v Lazarus [2015], the NSW Court of Appeal in R v Lazarus [2016] NSWCCA 52 found that the trial judge misdirected the jury on the question of the state of mind of the accused at the time of the alleged rape. After a judge sitting without a jury acquitted the accused, the NSW Court of Appeal in R v Lazarus [2017] NSWCCA 279 found that the judge in the re-trial failed to direct herself in relation to making a finding about the steps taken by the accused to establish whether the complainant was consenting. As well as reviewing the reasoning in the decisions, this article discusses rape myths and the justice gap and considers law reform on the issue of consent in rape cases.

On 7 May 2017, during the ABC Four Corners programme entitled ‘I Am That Girl’, Saxon Mullins gave up her anonymity as a victim/survivor and described how, as an 18-year-old, she believed she had been raped by 24-year-old Luke Lazarus less than 10 minutes after they met on a nightclub dance floor.¹ When asked by the interviewer whether she had wanted her first sexual experience to have been anal intercourse on her hands and knees in the gravel in an alley in Kings Cross, Ms Mullins shook her head and said: ‘I didn’t even get kissed until I was 17 years old’.

In February 2015, after Huggett DCJ gave detailed directions to the jury, Lazarus was convicted and was sentenced to 5 years’ imprisonment. On appeal, the New South Wales Court of Appeal found that the trial judge erred in his directions in relation to the reasonableness of Lazarus’ belief that Mullins had consented and ordered a re-trial. After hearing virtually the same evidence by both the complainant and the accused as the jury heard a year before, a judge sitting without a jury concluded that Lazarus had ‘reasonable grounds’ for believing that Mullins was consenting to the anal intercourse.

Although the NSW Court of Appeal in R v Lazarus [2017] NSWCCA 279 found that the judge in the re-trial had not misdirected herself in relation to Lazarus’ self-induced intoxication when considering the issue of consent, the Court of Appeal held that the trial judge failed to direct herself in relation to making a finding about the steps taken by Lazarus to establish whether the complainant was consenting to the intercourse.

There are usually no witnesses to serious sexual assaults. However, the accused is often known to the complainant, or his identity (the accused is usually a male) can readily be confirmed by DNA evidence. In these circumstances, cases turn on the credibility of the complainant and the question of consent.²

The case of R v Lazarus illustrates the difficulties inherent in the complex directions required to be given in rape trials. After the directions given by two consecutive trial judges were the subject of two successive appeals, the delays incurred in the re-trials must have weighed heavily in the decision of the Court of Appeal in 2017 not to order a third trial nearly five years after the original events in May 2013.

This article contrasts the disparate judgements at first instance and the detailed reasoning in both decisions of the Court of Appeal and concludes with a discussion of the ‘justice gap’ and ‘rape myths’ and questions of law reform on the issue of consent in rape cases.

Statutory definition of rape and consent

By s 61HA of the Crimes Act 1900 (NSW), ‘consent in relation to sexual assault offences’ is defined:

• (2) Meaning of consent

A person ‘consents’ to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

• (3) Knowledge about consent

A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

1. The person knows that the other person does not consent to the sexual intercourse, or

2. The person is reckless as to whether the other person consents to the sexual intercourse, or

3. The person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

4. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

5. Including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

6. Not including any self-induced intoxication of the person.

(4) Negation of consent

A person does not consent to sexual intercourse:

1. If the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or

2. If the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or

3. If the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or

4. If the person consents to the sexual intercourse because the person is unlawfully detained.

(5) A person who consents to sexual intercourse with another person:

1. Under a mistaken belief as to the identity of the other person, or

2. Under a mistaken belief that the other person is married to the person, or

3. Under a mistaken belief that the sexual intercourse is for health or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:

1. If the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or

2. If the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or

3. If the person has sexual intercourse because of the abuse of a position of authority or trust

(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.

Jury Trial – February 2015

On the evening of 11 May 2013, the complainant was aged 18 when she travelled with a female friend (BW) from the New South Wales Central Coast to Sydney to celebrate another friend’s birthday at Kings Cross. It was the complainant’s first visit to Kings Cross.

Prior to travelling by train to Kings Cross, the complainant and BW began drinking a mixture of soft drink and bourbon. At approximately 11:15 pm, the complainant and BW went to the World Bar and later to the nearby Soho Nightclub on Victoria Street. Over the following five hours, the complainant and BW travelled between the two nightclubs consuming a number of alcoholic drinks.

At trial, a compilation of various closed-circuit television (CCTV) footage was tendered which showed that at 3:55 am the complainant and BW entered Soho. At 3:59 am, the complainant was approached by the appellant on the dance floor. At 4:01 am, the complainant and the appellant were at the base of a set of stairs leading from the dance floor and, at 4:02 am, the complainant and the appellant left through a rear door onto Hourigan Lane, a dead-end street behind the Soho. At approximately 4:30 am, the complainant rejoined BW at the Kings Cross train station.

During the trial, it was accepted that although two CCTV cameras overlooked the laneway, the section of Hourigan Lane where the appellant took the complainant was not within range of either of the CCTV cameras. Also, on the night of 12–13 May 2013, neither of the cameras was operating.

The Crown case

There was no dispute that the accused had penile-anal intercourse with the complainant. The Crown sought to establish that the circumstances in which sexual intercourse occurred, including when, where and how it occurred, what the complainant said both before and during intercourse and the appellant’s treatment of her at that time, would satisfy the jury that the complainant was not consenting to anal intercourse and that the appellant knew she was not consenting or was at least reckless as to whether or not she was consenting.

Evidence-in-chief by the complainant

The complainant described how the appellant approached her on the dance floor and, during a brief conversation, told her he was a part-owner of the nightclub (the appellant’s father was actually a part-owner of the club where the appellant was a casual employee). The complainant then agreed to go with the appellant to a booth located to the side of the dance floor out of the range of the CCTV camera to meet the DJ.

The complainant testified that after going to the DJ booth where they held hands, she accepted the appellant’s invitation to accompany him to what he called a ‘VIP area’ and that he led her from the dance floor down a short flight of stairs. The complainant testified that she thought that by the time she left the dance floor with the appellant, she had consumed approximately 16 standard drinks and was quite intoxicated.

The Crown relied upon the CCTV footage which showed the appellant extend his hand and lead the complainant through the doorway onto the laneway. The Crown submitted the jury would infer her state of intoxication from her movements at that time, including her momentary stagger and her leaning on the wall for support.

The complainant testified that they walked for about 50 metres along the lane before they stopped near a fence and began to kiss. The complainant testified that she then wanted to leave and said: ‘I need to go back to my friend, I have to meet my friend’ to which the appellant said: ‘No, stay here with me’. The complainant testified that as she turned to go, the appellant put his hands up her skirt and pulled her stockings down ‘a little bit’. The complainant testified that she turned back to him and pulled her stockings back up and I said ‘I really have to go’ at which the appellant said ‘Put your fucking hands on the wall’ in a tone of voice which the complainant described as ‘frustrated and impatient … more aggressive’ than he had been previously.

The complainant testified that she put both her hands on the fence: ‘I was just scared I guess, I didn’t know what to do so I just did what he said’. The complainant testified that the appellant then pulled her stockings and underwear down to her ankles and said ‘Just get on your hands and knees and arch your back’. The complainant testified that she complied:

A. ‘I was scared, I can’t … I was just doing what he asked.

…

He put his penis into my butt, my bum I guess, I don’t know which correct terminology it is and I said “Ow” and he said “You’re so tight” and I said “What do you expect, I’m a fucking virgin” and he said “Oh shit, really” and then I just kept saying “I have to go back to my friend” and he didn’t say anything to that’.

Q. ‘Did you say anything else to him?’

A. ‘I asked him to – I said “Stop” at the start like at the beginning after – after he said “Oh shit, really” and then I just kept saying “I need to go back to my friend”’.

The complainant testified that the penetration continued for about 10 minutes after which the appellant asked her to put her name on a list on his mobile phone. The complainant testified that after she tried unsuccessfully to re-enter the nightclub, she went to the Kings Cross train station where she telephoned her friend BW who arrived shortly thereafter. The complainant said that she was crying as she told BW what had happened. After taking the train to her sister’s place, the complainant sent two messages to her sister. In the second text message, the complainant said:

At about 4.30, [BW] and I went back to Soho and she was hooking up with this boy and I was just dancing beside them and this boy started dancing with me and he was the co-owner of Soho (like for serious, he actually was) and he introduced me to the DJ and then he took me out this back door and we went down this alley and then he was aggressively hooking up with me and I was like ‘I have to go back to my friend’ and he was like ‘No, its fine, she won’t miss you’ and then I was trying to get away and I was like ‘No, I really have to find my friend’ and then he just went ‘No, put you fucking hands on the ground and arch your back’ and I didn’t know how to leave so I just did and he, ah, how do I put this delicately? Anal. Yep. And then I ran away and called [BW] and waited for her and cried. The End.

Cross-examination of the complainant

The complainant was invited to concede that in her evidence-in-chief, she omitted some aspects of the events of the evening and important details of her sexual engagement with the appellant. The complainant was not asked in cross-examination whether the appellant was touching her in the sexually suggestive way the appellant later described in his evidence or whether she had her hands ‘around’ him. As to what occurred before the anal intercourse, the complainant conceded that there could have been ‘kissing’ and ‘rubbing of bodies’. The complainant disagreed that she had deliberately exaggerated the amount of alcohol she had consumed and its effects.

It was put to the complainant that she was an active and willing participant throughout the intercourse, and that she only changed her attitude when she saw that she was the last addition to a list of names in the appellant’s phone. It was also put to the complainant that only then did she decide to make a false complaint about non-consensual anal intercourse, claiming that she only submitted because she was in a state of fear and because her judgement was impaired by the alcohol she had consumed. The complainant did not agree to these propositions.

Forensic examination

During the morning of 13 May 2013, the complainant attended the Royal North Shore Hospital where she was assessed by Dr Freedman who documented:

[The complainant] was at [a] club in Kings Cross with [a] friend. She met a man and they went outside. Once outside they started ‘hooking up’ (kissing). [The complainant] said she had to go. The man told her to stay. [The complainant] tried to leave, the man ordered her to put her hands on the wall, he pulled her stockings down. He then pushed her down on all fours. He penetrated her anus with his penis. She said it was very painful. He did not use a condom. She does not think that he ejaculated. She then ran back to her friend and they went home.

The forensic examination documented grazes on the complainant’s knees and small tears around her anus. Examination of semen collected from an anal swab later confirmed the presence of the appellant’s DNA. Dr Freedman was not called to give evidence at trial.

Evidence of Detective Senior Constable Dale

Later on 13 May 2013, the complainant attended Kings Cross Police Station to make a formal complaint and statement.

On 9 August 2013, when the appellant attended Kings Cross Police Station with a legal representative, he was formally cautioned and charged. He declined to be interviewed.

Police obtained data from the appellant’s phone, which included a list of female names, including the complainant’s name. A text message exchange between the appellant and a friend named ‘Rono’ from 2:00 pm on 12 May 2013 was also retrieved from the appellant’s phone:

Rono: ‘How was your night??’

Appellant: ‘I honestly have zero recollection of calling you. Was a sick night – took a chicks virginity lol’

Rono: ‘Bahahaha nice popping does [sic] cherries. Tight?’

Appellant: ‘So tight … It’s a pretty gross story tell ya later’.

The police also intercepted a number of phone calls between the appellant and both his father and a male friend between 3–6 August 2013 which, in the Crown’s submission, revealed the appellant’s concern as to what the CCTV footage might have revealed and his expressions of relief when he learnt the CCTV footage did not show him with the complainant.

The appellant’s case

It was the case for Lazarus that within the first two minutes of their meeting, he and the complainant were intimately engaged including him touching her buttocks and that this encouraged him to think she would have sex with him and ultimately to believe that she was consenting to the anal intercourse that occurred within minutes in the laneway. Lazarus gave evidence that when they left the club and entered Hourigan Lane, he believed the complainant was not affected by alcohol. He did not agree that the complainant had earlier steadied herself by placing her hand on the wall before exiting.

Lazarus testified that in the laneway, he and the complainant held hands and the complainant was jogging, ‘almost skipping’ to the end of the lane where they started kissing. (The complainant had not been invited in cross-examination to confirm or deny that she ‘jogged’ or ‘skipped’ down the laneway). Lazarus testified that at the end of the laneway, they started kissing again: ‘our bodies were touching. At this point I was touching her buttocks and her breasts, our groins were touching, she had her hands around me and, yeah, we were kissing the whole time’.

Lazarus testified that he believed the anal intercourse with the complainant was consensual and that there was nothing in her behaviour towards him, including anything she said or her behaviour before or during intercourse that indicated to him that she was not consenting. Lazarus maintained that in his assessment, the complainant actively and willingly engaged in anal intercourse.

Lazarus testified that he never raised his voice or was demanding and that the complainant never said ‘no’, asked him to stop or pulled away from him as he first attempted vaginal penetration and then penetrated her anus. Lazarus testified that the complainant ‘moved back towards me with her body. I believe that she was encouraging me’.

Lazarus denied raising his voice or physically pushing or threatening her at any time. When asked what steps Lazarus took to satisfy himself that the complainant was consenting, he testified:

I knew she was consenting because we had kissed a number of times heading up to – she willingly came down the lane with me, I didn’t force her to, we were kissing down in the lane, I didn’t ask her to bend over, she just did it, as I put my penis to her vagina she pushed back towards me, and then as we were having sex she was moving back and forwards with me the whole time.

Lazarus testified that after the anal intercourse, he offered the complainant his mobile phone for her to enter her name. He testified that thereafter, the complainant was no longer smiling but rather appeared ‘disgruntled … there was a serious look on her face. I realised that at that point that it was clearly a very, very rude thing for me to have done. She gave me the phone back and she just … walked away’. After the intercourse, Lazarus stayed in the laneway for some time before using his phone to call a taxi.

Lazarus was taken to a series of telephone calls intercepted by police under warrant. He was asked about one conversation in which his father asked whether a girl had any complaint or was angry at him to which Lazarus answered ‘no’. He explained: ‘I had no inkling that she could have had a problem … I knew everything was completely consensual’.

Cross-examination of the appellant

Lazarus accepted in cross-examination that his estimate of five minutes, for the time he and the complainant were intimate at the DJ booth before going outside, was inaccurate. Lazarus agreed that he decided to take the complainant out into Hourigan Lane to have intercourse, as opposed to a storeroom or other room, because he knew that there were no CCTV cameras at the end of the lane.

As to the complainant’s account of her stockings and underwear being pulled down by the appellant as she tried to leave, the appellant said: ‘Absolutely not … It definitely did not happen’. Lazarus denied using an aggressive tone when he directed the complainant to put her hands on the fence and then to get onto her hands and knees on the ground, or that he felt frustrated or impatient. He said that he asked the complainant to get on the ground on her hands and knees to make penetration easier for both of them. Lazarus said, save for the exchange about her being ‘tight’, there were no words exchanged between them during intercourse.

Submissions by the Crown

The Crown urged the jury to accept the complainant’s evidence that on repeated occasions after her initial attempt to leave, including during intercourse, she said she wanted to go back to her friend, which Lazarus ignored. Although she complied with his aggressive directions to put her hands on the fence and then kneel on the ground and arch her back, the Crown invited the jury to accept that she acted in that way out of fear and a sense of bewilderment at her predicament.

As further evidence that Lazarus either knew she was not consenting or was reckless as to that fact, the jury was also reminded that after Lazarus described her as being ‘tight’ (prompting her to tell him she was a virgin) the complainant said she asked him to ‘stop’ and that he said nothing in response as he continued to penetrate her anus. Finally, the Crown invited the jury to reject as untruthful the evidence by Lazarus that from his first encounter with the complainant on the dance floor to his having anal intercourse with her shortly thereafter in the laneway, she presented to him as a willing, eager and enthusiastic sexual partner. The Crown also invited the jury to reject as unpersuasive his attempt to account for the tone in which he recounted the incident to his friend by text message.

Submissions by the appellant

Counsel for Lazarus submitted that in relation to s 61HA (3) of the Crimes Act there was no evidence available to the jury to support the conclusion, beyond reasonable doubt, that Lazarus actually knew the complainant was not consenting or that Lazarus realised there was a possibility that she was not consenting or that he did not even consider whether or not she was consenting. It was submitted that the evidence, taken as a whole, supported the conclusion, or at least raised a reasonable possibility that the prosecution could not negative, that Lazarus honestly believed, and on reasonable grounds, that the complainant was consenting to anal intercourse, which was the state of mind provided for in s 61HA(3)(c).

Trial judge directions to the jury

Huggett DCJ directed the jury that the Crown was obliged to prove Lazarus knew the complainant was not consenting to anal intercourse. The judge’s oral and written directions set out the three alternative ways in s 61HA(3)(a)–(c) that knowledge of lack of consent by Lazarus could be established:

• actual knowledge that she was not consenting

• being reckless as to that fact, or

• an absence of any reasonable grounds for him to honestly believe that she was consenting.

Jury verdict 2015

On 9 February 2015, Lazarus was convicted and in March was sentenced to five years’ imprisonment with a non-parole period of three years.

First appeal – April 2016

Lazarus filed three grounds of appeal, although only Grounds 1 and 2 were pressed at the hearing.

Decision of the Court of Appeal

On 19 February 2016, the appeal was heard. On 12 April 2016, the decision of the Court of Appeal was published. By a unanimous decision, the Court of Appeal held that although Ground 1 had not been made out, Ground 2 had been made out and the appeal was allowed.

Fullerton J summarised the evidence at trial and wrote the substantive judgement.

Ground 1: the verdict of the jury was unreasonable and contrary to the evidence

Fullerton J noted (at [97]) that the test for Ground 1 was settled by the High Court in M v The Queen [1994] 181 CLR 487, at [493]. It is, whether the appeal court was satisfied that upon the whole of the evidence it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty. Fullerton J asked himself two essential questions to determine whether this test had been met:

• Whether there was sufficient evidence upon which the jury could have been satisfied that the Crown had proved beyond reasonable doubt the complainant did not consent to anal intercourse

• Whether there was sufficient evidence upon which the jury could have been satisfied that the Crown had proved that the complainant was not consenting to anal intercourse.

Fullerton J noted (at [98]) that the test does not exclude the appeal court from considering the jury’s advantage in seeing and hearing the evidence.

When considering whether there was evidence sufficient for the jury to conclude that the complainant had not consented, Fullerton J noted (at [101]) that Lazarus conceded that the complainant’s unambiguous evidence at trial was that she did not consent to anal intercourse. However, Lazarus submitted that the attack on her credit, in particular (1) what were said to be unexplained and material inconsistencies in the account she gave to her sister, police and a doctor within 12 hours of the incident and (2) her behaviour on the night, including that she left the dance floor and went into a darkened laneway with a relative stranger within minutes of meeting him, would satisfy the Court it that it was not open to the jury to be satisfied that she was giving truthful evidence when she said she did not consent.

Fullerton J held (at [112]) that each of the submitted inconsistencies or anomalies were explicable. Even if the complainant did “push back during intercourse” which may have facilitated penetration, it may equally have been an involuntary physical response or an attempt to make penetration more difficult, leaving it open to the jury to find either that she did not “push back” or, if she did, it was not to signal her consent. As the Crown pointed out in its submissions, it was not put to her in cross-examination that she pushed back to willingly engage with Lasarus as he penetrated her. Fullerton J held that it was open to the jury to regard such concessions as they consider she made in cross-examination (itself a jury question) as not giving rise to the reasonable possibility that she did consent to anal intercourse. That she did not consent to anal intercourse was a position from which she did not retreat. Further, even if the jury were not satisfied that the complainant was intoxicated to a ‘substantial’ degree, the amount of alcohol she consumed and her evidence about its effect during her sexual encounter with him remained part of the evidence available to the jury when considering if she had consented.

Further, Fullerton J accepted (at [104]) that it was open to the jury to accept the complainant’s evidence she did not tell the doctor that she had been pushed to the ground. Fullerton J said that the jury may have allowed for the possibility that the doctor may have made a transcription error about that aspect of the complainant’s account to her. Fullerton J concluded (at [117]) that it was open to the jury to be satisfied beyond reasonable doubt that the complainant did not consent.

Fullerton J then considered the second question determinative of Ground 1: whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew the complainant was not consenting. Lazarus submitted that even were it open to the jury to be satisfied that the complainant was not consenting, the evidence was incapable of establishing Lazarus knew she was not consenting or incapable of negativing the possibility that he believed on reasonable grounds she was consenting. In answering this question, Fullerton J noted that knowledge of lack of consent could be established in three alternative ways under s 61HA of the Crimes Act: actual knowledge of lack of consent to the intercourse, recklessness as to whether the person was consenting to the intercourse or proof of the absence of any reasonable grounds for believing that the person was consenting to the sexual intercourse.

Fullerton J emphasised (at [133]) that the contested questions of veracity and reliability, including whether the complainant made any material concessions in cross-examination, were ‘quintessentially jury questions’.

In dismissing the first ground of the appeal, Fullerton J held (at [136]–[137]):

After undertaking the requisite independent review of all the evidence at trial bearing upon the question of proof of the third element, and paying full regard to the opportunity the jury had of seeing and hearing the complainant and the appellant give their evidence, and for each to be challenged under cross-examination as to their honesty in recounting what was said and done in Soho and in the laneway (or not said or not done as the case may be), I am satisfied that the evidence allows for the jury to have concluded that the appellant was at least reckless as to whether the complainant was consenting to anal intercourse and to have concluded that was his state of mind when he had anal intercourse with her (emphasis added).

Ground 2: the trial judge misdirected the jury about whether the appellant had any reasonable grounds for believing that the complainant was consenting

Although the Court of Appeal decided that there was sufficient evidence for it to be open to the jury to convict the appellant, if the trial judge misdirected the jury about a matter of law, the conviction could not stand, given the misdirection may have provided an unlawful way for the jury to actually convict him.

Fullerton J noted that the trial judge provided written and oral directions to the jury which were generally consistent.

The appellant submitted that only part of the trial judge’s written and oral directions as to the applicable law were in error and that in every other respect the directions were sound. Lazarus submitted that the trial judge improperly directed the jury that:

If you consider that [the complainant’s] actions caused a belief in the mind of the accused that she was consenting to penile-anal intercourse with him and you consider that such a belief was a reasonable one, then the third element would not have been proven.

Lazarus submitted that this direction, which purported to express the test in section 61HA(3)(c) of the Crimes Act, was wrong in three particular ways:

• First, it imposed an objective test of reasonableness of the appellant’s belief in consent, where no such test existed under s 61HA(3)(c);

• Second, it misstated the onus of proof by imposing an onus on the appellant to satisfy the jury that he believed the complainant was consenting; and

• Third, it failed to detail or explain the evidentiary basis for the appellant’s claim to have reasonably believed that the complainant had consented to the sexual intercourse.

Fullerton J found it unnecessary to consider the third particular, given he accepted the ground had been established after consideration of the first and second.

Regarding the first particular, that the trial judge’s direction had imposed an objective test of reasonableness of the appellant’s belief in consent, the Court was referred to O’Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45 as authority for the direction to a jury when proof of the absence of consent is an element of the offence.

O’Sullivan explained the meaning of the words used in s 61HA(3)(c) of the Crimes Act. The meaning ascribed to similar formulations in other areas of the criminal law, such as self-defence, established that it is the belief of the accused himself, and not that of a hypothetical reasonable person in the position of the accused, which must be reasonable. Fullerton J accepted that O’Sullivan correctly established that this principle applied to the interpretation of s 61HA(3)(c) of the Crimes Act. The relevant portion of the direction in O’Sullivan was expressed in that case as follows:

On the other hand, you may decide that [the accused] might have believed, although wrongly, that [the complainant] was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether he had reasonable grounds for that belief. Therefore if you are not satisfied that the accused knew the complainant wasn’t consenting, the Crown must prove one of two facts before you can find the accused guilty: either (a) that the accused did not honestly believe that the complainant was consenting or (b) that, if he did have an honest belief in consent, that he had no reasonable grounds for that belief.

This test accepts that the jury must consider the actual belief held by the accused person, and if that actual belief was based on any reasonable grounds. The test is not whether a hypothetical reasonable person would have believed the complainant was consenting.

Fullerton J held (at [157]) that although counsel for Lazarus accepted that the complainant’s purported unreliability was the main focus of defence counsel’s closing submissions to the jury, it remained incumbent on the trial judge to direct the jury that it was the Crown’s responsibility to negative any reasonable possibility that the accused believed, even wrongly, that the complainant was consenting. The trial judge also incorrectly directed the jury to ask what a reasonable person might have concluded about consent; when the correct direction required the jury to ask what the accused himself might have believed in all the circumstances in which he found himself, and then to test that belief by asking whether there were reasonable grounds for it. Ground 2 was thus made out, and Fullerton J ruled that the appeal should be allowed.

Fullerton J emphasised (at [159]) that, since Ground 1 failed, the appellant must be retried. Accordingly, Fullerton J granted leave to appeal, allowed the appeal, quashed the conviction and ordered a new trial.

Judgement of the Chief Justice, Adams J

The Chief Justice (with whom Adams J agreed) held (at [3]) that whilst Ground 1 of the appeal had not been made out, Ground 2 of the appeal had been made and, as held by Fullerton J, there must be a new trial.

Order for re-trial before judge sitting alone

After the Court of Appeal quashed the conviction, the appellant was released from custody on bail. The matter was remitted to the District Court for re-trial, and an order was made pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) that the trial proceed before a judge alone.

Re-trial before judge sitting without a jury – April, May 2017

On 3 April 2017, the trial commenced in the District Court. The testimony of the complainant was to the same effect as during the first trial.

During cross-examination, Lazarus accepted that his general approach to the complainant and the things he did and said before going outside to Hourigan Lane were designed to impress her and to give her the impression that he was someone of importance at the nightclub.

He disagreed he was substantially intoxicated at 4:00 am. He was cross-examined about texts which passed between him and one or more of his friends that evening, in which he described himself as being ‘loose’. He said that his use of that word did not refer to his state of sobriety. He agreed that he was disinhibited when he had sex with the complainant but disagreed that his judgement was significantly impaired at the time.

He denied that the complainant was significantly affected by alcohol when he first approached her or that he wanted to lead the complainant from the dance floor into Hourigan Lane as quickly as possible so that she would not appreciate what was happening.

Lazarus denied that once they were out in Hourigan Lane he had placed his hands up the complainant’s skirt and pulled her stockings down, only to have her pull them up and say ‘I really have to go’. He also denied that he told the complainant in a frustrated, impatient and aggressive tone to ‘put [her] fucking hands on the wall’. He denied that the complainant had cried out in pain when he first put his penis in her anus and said he could not recall saying to the complainant ‘Oh shit, really’ in response to being told that she was a virgin. He agreed that he texted a friend and described as ‘gross’ what had occurred with the complainant.

Submissions to the trial judge

In closing submissions to the trial judge, the Crown said (at T308.8–308.14):

[It will be] the Crown’s submissions to you that this complainant was very intoxicated and notwithstanding that the accused can’t rely on it as some sort of defence, but so was he (emphasis added).

Later (at T331.25–331.29), in the course of dealing with the issue of the defendant’s intoxication, the Crown said:

The Crown submits further that the accused was very intoxicated during the course of the night and into the morning, contrary to his evidence before you that he was only moderately intoxicated. As your Honour is well aware self-induced intoxication can’t be taken into account in relation to his knowledge of lack of consent (emphasis added).

At T334.20–334.26, senior counsel for the defendant submitted:

You will need to consider the affect (sic) of alcohol on the accused and did his intoxicated state make him misinterpret or overlook her lack of consent? If so, then, of course, his self-induced intoxication is to be ignored but to go to the first issue about whether or not the prosecution have proved lack of consent, I make these submission and in many respects they will also go to the issue of whether he had an honest believe (sic) that she was consenting and whether or not he had reasonable grounds to hold such a belief (emphasis added).

Oral reasons of the trial judge

On 4 May 2017, the trial judge delivered oral reasons for judgement, at the conclusion of which she found the defendant not guilty. The trial judge reviewed the evidence, including the evidence of the defendant’s intoxication. The trial judge found (at T25.3) that Lazarus was ‘at least moderately drunk’ when he arrived at Soho and that although he had commenced to sober up by 4:00 am, he was still affected by alcohol. The trial judge then said (at [25.4]):

‘It is important that I note here that it is not open to take into account the accused’s level of intoxication in determining whether or not his state of mind amounted to recklessness’ (emphasis added).

After emphasising that there was no issue that sexual intercourse had taken place, the trial judge considered whether the Crown had established beyond reasonable doubt that the complainant did not consent to sexual intercourse (at T70.8):

[T]he evidence does establish beyond reasonable doubt that the complainant, in her own mind, did not consent to the anal sexual intercourse that occurred, and thus the second element is established.

Then the trial judge considered the third element, namely whether Lazarus had one of the three applicable states of knowledge of the complainant not consenting. After finding there was no evidence suggesting the defendant knew the complainant was not consenting to sexual intercourse (at T71.1), the trial judge turned to the issue of recklessness (at T71.4):

The evidence from the accused in relation to this issue of recklessness which I note I must take into account without any consideration of his state of intoxication, does not in my view support an assertion that he was reckless. It does not appear to have been a large plank of the Crown’s case that recklessness could be established on the evidence (emphasis added).

Having concluded (at T71.7) that Lazarus had a genuine and honest belief that the complainant was consenting to sexual intercourse, the trial judge noted that it remained to be determined whether or not that was a reasonable belief.

The trial judge observed that the complainant kissed the defendant ‘passionately’ in the DJ booth, and accompanied him downstairs intending to go somewhere private, before going ‘willingly’ into the alley (albeit not knowing at the time where she was going), where she continued to kiss the defendant ‘passionately’. The trial judge noted that when the complainant wanted to stop and return to her friend, the defendant persuaded her to stay with him (T72):

Just before that, as she was turning to go away, [the defendant] pulled down her undies, it seems to me clearly indicating what his intentions were, and she pulled them up, but it was at that time that he persuaded her to stay, and she stayed.

The complainant kissed him again after she had turned around and stayed, and when he asked her or even told her to put her hands on the fence she turned around and did so, and he pulled her undies down and she did not pull them up. He tried to penetrate her vagina, she did nothing physically to avoid that. When he said that she was tight she told him she was a virgin but it was in the context of being told that she was tight. After that when she was told to get down on the ground on all fours and arch her back, she did so as requested and participated in a further attempt to penetrate her vagina by moving back and forward as the accused attempted to do that. When that did not work and he started to insert his penis into her anus she pushed back towards him and then back and forwards as the anal intercourse took place.

The trial judge found that the complainant did not say ‘stop’ or ‘no’ and did not take any physical action to move away, either when standing up or when she was down on the ground on all fours. The trial judge concluded that it was reasonable in the circumstances for the defendant to have formed a genuine belief that the complainant was consenting to what was occurring even though it was ‘quick, unromantic, they had both been drinking and in the case of both of them may not occurred (sic) if each had been sober’.

Written reasons of the trial judge

On 5 May 2017, the day after the trial judge delivered her spoken reasons, the Director of Public Prosecutions requested a copy of the trial judge’s reasons. On 22 May 2017, the Director received the trial judge’s ‘DRAFT’ reasons. On 25 May 2017, the Director received a further copy of the reasons in which the word ‘Draft’ was replaced by the word ‘Revised’.

A passage appeared at p. 13.1 of the trial judge’s reasons:

In this case there is evidence about the accused’s state of intoxication at the time of sexual intercourse, but in considering his state of mind when determining whether or not the Crown has proved the second of the two ways in which they could prove knowledge of lack of consent, namely recklessness, I cannot take into account the fact that the accused was intoxicated where that intoxication is the result of the voluntary ingestion of alcohol or non-prescribed drugs and the intoxication here was voluntary (emphasis added).

Having noted that it was the belief of Lazarus (as opposed to that of a hypothetical person) that was relevant, and having further noted that the reasonableness of the belief on the part of Lazarus was to be assessed objectively, the trial judge said at p. 13.8:

In assessing this third way of determining the accused’s state of mind and whether or not he has a guilty state of mind as argued by the Crown, I am entitled to take into account his level self-induced intoxication, especially in deciding whether or not it was an honestly held belief, but also whether or not there were reasonable grounds for holding such a belief (emphasis added).

On 31 May 2017, after identifying that the italicised passages were contradictory, the Director filed a notice of appeal. On the same day, the Director advised the solicitor for Lazarus of the appeal, which asserted that the trial judge erred in taking into account self-induced intoxication when determining whether Lazarus had no reasonable grounds for believing that the complainant consented to the sexual intercourse.

Second appeal – September, November 2017

The Crown appealed on two grounds. The appeal was heard on 1 September 2017. On 27 November 2017, the decision of the Court of Appeal in R v Lazarus [2017] NSWCCA 279 was published. Bellew J (with whom Davies J agreed) wrote the substantive judgement and orders.

Ground 1: the trial judge erred in taking into account the respondent’s self-induced intoxication in determining whether the respondent had no reasonable grounds for believing that the complainant consented to the sexual intercourse contrary to s 61HA(3)(e)

Submissions of the Crown

The Crown submitted that in all of the circumstances there was compelling support for the conclusion that the omission of the word ‘not’ in the trial judge’s written reasons was not a slip, but rather, accurately reflected the reasoning process by which she reached her conclusions. It was submitted that the direction that the trial judge had given herself was contrary to the mandatory direction in s 61HA(3)(e) and that the balance of the judgement was consistent with the trial judge having applied the wrong test.

Submissions of the respondent

Senior counsel for Lazarus submitted that the omission in the written reasons was a clear slip and did not reflect what the trial judge meant to say. Senior counsel submitted that a review of the transcript of the trial made it abundantly clear that the trial judge was aware that the self-induced intoxication of Lazarus could not be taken into account and that this was apparent from the submissions of both trial counsel as well as from the reasoning process adopted by the trial judge as revealed in the revised judgement.

Judgement of Bellew J

Bellew J said (at [100]) that both parties addressed the trial judge in accordance with s 61HA(3)(e) and reminded the trial judge that the self-induced intoxication could not be taken into account in assessing his state of mind. Bellew J noted that the trial judge had acknowledged s 61HA(3)(e).

Bellew J noted (at [121]) that when delivering her spoken reasons, the trial judge didn’t say the word ‘not’ in the passage at T13.8. Bellew J held (at [128]) that the trial judge correctly stated the law on several occasions, both before and after the impugned passage, which fortified the view that notwithstanding what the trial judge wrote at T13.8, she was well aware of the law and applied it correctly. Bellew J concluded (at [132]) that the first ground of appeal was not made out.

Ground 2: the trial judge erred in failing to direct herself that in relation to making a finding about the respondent’s knowledge of consent pursuant s 61HA(3), the trial judge must have regard to any steps taken by the respondent to ascertain whether the complainant was consenting, as required by s 61HA(3)(d)

Submissions of the Crown

During the trial, the Crown submitted to the trial judge (at T330.48–330.50) that Lazarus took ‘no steps at all to ascertain whether the complainant consented to anal intercourse with him’. During the appeal, the Crown submitted that the trial judge was obliged to include in her reasons for judgement her findings of fact and the principles of law which she applied. It was submitted that the effect of s 61HA(3)(d) was to mandate that the trial judge consider what steps the respondent took to ascertain whether the complainant was consenting to sexual intercourse, and that it was evident that the trial judge had not directed herself in accordance with that principle. The Crown emphasised that there was no reference, express or implied, to the provisions of s 61HA(3)(d) at any point in the trial judge’s reasons, nor was there anything in the judgement from which it could reasonably be inferred that the principle embodied in that provision had been applied.

Judgement of Bellew J

Bellew J considered section 133 (Verdict of a single judge) of the Criminal Procedure Act 1986 (NSW). After referring to authority,³ Bellew J noted (at [141]) that s 133(2) required that the trial judge expose his or her reasoning.

Since there was no reference, express or implied, to s 61HA(3)(d) in the trial judge’s reasons, and thus no express or implied statement of the relevant statutory principle, Bellew J held those factors alone supported a conclusion that the principle was not applied and that error was established.

After noting (at [147]) that ‘step’ for the purposes of s 61HA(3)(d) must involve the taking of some positive act, Bellew J held (at [148]) that those passages of the trial judge’s reasons upon which the respondent relied amounted to nothing more than a recitation of factual findings and did not comply with s 61HA(3)(d).

The residual discretion – submissions of the Crown

The Crown submitted that there was a strong public interest in ordering that the respondent be re-tried, given the seriousness of the alleged offending, the desirability of having the guilt or otherwise of Lazarus finally determined by a Judge or by a jury and the significance and materiality of the errors which were asserted.

The residual discretion – submissions of the respondent

Counsel for Lazarus submitted that even if error were found, there were cogent reasons for the Court of Appeal to exercise its discretion not to order a re-trial, including that he:

• was aged 21 when the original events occurred and had lived with the anxiety and stress associated with proceedings since his arrest in August 2013;

• had undergone two trials in the District Court and two appeals to the Court of Appeal and had served 10 months imprisonment before being released on bail;

• had been the subject of significant adverse publicity in both mainstream and social media; and

• would not face any new trial before the latter part of 2018, which would be substantially in excess of five years since the relevant events occurred.

Residual discretion – judgement of Bellew J

After considering the provisions of s 104 (Interests of justice – matters for consideration) and s 107 (directed jury acquittals or acquittals in trials without juries) of the Crimes (Appeal and Review) Act 2001 (NSW), Bellew J noted that the power of the Court of Appeal to order a new trial was discretionary and that such discretion was to be exercised having regard to the ultimate question of whether the interests of justice required a new trial.⁴

After considering (at [155]) the various factors listed by McClellan CJ in Gilham v R [2012] NSWCCA 131 at [649], Bellew J observed (at [161]) that any re-trial would take place more than five years after the event, that another criminal trial would be ‘an ordeal’ for both the complainant and the respondent and that the circumstances which brought about the possibility of a re-trial were not the fault of Lazarus or those acting for him.⁵ After noting (at [163]) that Lazarus had already served 10 months, Bellew J held (at [168]) that an order for a re-trial ‘would give rise to oppression and unfairness’ and that a consideration of all the relevant factors weighed in favour of the Court of Appeal exercising its discretion not to order that the respondent be tried for a third time.

Judgement of Hoeben CJ

The Chief Justice held (at [2]), in relation to Ground of Appeal 1, that it was clear from a full examination of the submissions made to the trial judge and the trial judge’s statements of principle in her judgement that her failure to insert the word ‘not’ in her written reasons was in fact a slip and did not involve an error of law which would cause her judgement to be set aside. The Chief Justice concluded (at [3]) that for those reasons and the reasons identified by Bellew J, the trial judge was well aware of the provisions of s 61HA(3)(e) of the Crimes Act 1900 (NSW) and applied the section correctly.

Discussion

The ‘justice gap’

From 2016 to 2017, the number of sexual assault victims recorded by police increased by 8% across Australia.⁶ This was the highest number recorded and the sixth consecutive year that the number had increased in Australia.

Attrition is the term used to describe the process by which cases of sexual assault drop out of the criminal justice system.⁷ Empirical research has consistently shown that many sexual assaults are not reported to police. The complaints are also later withdrawn or the police decline to follow-up on the report.⁸ One study found that police believed up to a quarter of reported rapes were false.⁹

Prosecutors are often unwilling to take cases of alleged rape to trial.¹⁰ In those cases that go to trial, there is a low prosecution rate compared to other serious offences.¹¹ Most sexual offences against adults proceed no further than the investigation stage, and less than 20% result in the initiation of criminal proceedings against a suspect.¹² Sexual assault cases are more likely to be prosecuted when:

• The complainant was injured;

• The assault was aggravated (use of force or a weapon);

• Additional corroborating evidence was available; and

• The accused was a stranger.¹³

Among the small proportion of cases that do reach court, the conviction rate is less than 10%.¹⁴ This attrition has been referred to as the ‘justice gap’.¹⁵ Many victims choose not to report a rape because of the general negative attitude towards rape victims.¹⁶ Blaming a victim for his/her own victimisation is an example of counterfactual thinking.¹⁷

Although the prevalence of false allegations of sexual assault is likely to be no more than 10%,¹⁸ one Australian community study found that a quarter of those surveyed disagreed that ‘false claims of rape’ were rare, 15% agreed that women often say ‘no’ when they mean ‘yes’, and 7% of males agreed that women who were raped ‘often ask for it’.¹⁹

Rape myths

‘Rape myths’ were first defined generically as prejudicial, stereotyped or false beliefs about rape, rape victims and rapists.²⁰ More recently, rape myths have been more widely defined as prescriptive beliefs about the scope, causes, context and consequences of sexual aggression that serve to deny, downplay or justify sexually aggressive behaviour of (usually) men against (usually) women.²¹ The most ubiquitous examples of ‘rape myths’²² include that those women who wear skimpy or provocative clothing are ‘asking to be raped’ and that ‘rape fantasies’ are common in women. Rape myths can been further sub-classified into a number of simple cognitive schema including ‘she asked for/wanted/liked it’ and ‘she lied/it wasn’t really rape’.²³

The ‘real rape’ stereotype

One recurring rape myth has been distinguished as the ‘real rape’ stereotype.²⁴ The key elements of the ‘real rape’ stereotype (including that the rapist was a stranger who used force, the assault occurred outdoors and the complainant actively resisted and demonstrated physical injuries from resisting) are represented in only a minority of actual rapes. Jury studies have also shown that whilst defendants were viewed as less blameworthy if they were intoxicated, complainants are denigrated for putting themselves at risk by becoming intoxicated with alcohol or substances.²⁵ Rape myths relating to alcohol intoxication include ‘even a drunk woman is capable of refusing consent’, ‘women who are drunk are to blame for being raped’ and ‘women who are drunk cry rape because they regret having sex whilst they were drunk’.²⁶

Rape myth acceptance

Bigoted beliefs about rape and rape myth acceptance have also been found to be a significant factor for jurors,²⁷ and research has consistently shown that in cases which turn on the issue of consent, including ‘acquaintance rape’, those who endorse rape myths are more likely to attribute more blame to the complainant and are more likely to acquit the accused.²⁸

A recent Australian mock sexual assault trial study found that jurors have strong expectations about how a ‘real’ rape victim would behave.²⁹ Examples of negative perceptions of rape complainants included:

• The complainant had flirted and danced with the accused before the rape;

• The complainant did not scream or call for help during the rape;

• The complainant did not immediately leave the scene of the rape;

• The complainant did not incur any physical injury and there was no medical evidence of physical injury;³⁰

• The complainant delayed making a report to police; and

• The complainant did not appear distressed giving evidence of the rape.³¹

Whilst rape myth acceptance attitudes have been found in studies of both the general population³² and convicted rapists,³³ a recent study of rape victims’ attitudes found that rape victims who did not report the rape had significantly higher levels of rape myth acceptance.³⁴

The reluctance of victims of rape to report being assaulted may relate to a number of factors:

• Victim-blaming attitudes towards women who have been raped are still prevalent;³⁵

• The agencies supporting rape victims remain inadequately funded;³⁶

• Police specialisation in rape investigations is still not accepted as essential;³⁷

• Attrition rates in rape cases remain high;³⁸ and

• The adversarial criminal justice system re-victimises rape complainants.³⁹

During rape trials, as well as highlighting any minor inconsistencies or omissions in the various accounts given by the complainant,⁴⁰ defence counsel may draw upon the themes of ‘rape myths’ to discredit the complainant and suggest that the complainant was unclear or at least ambivalent in indicating lack of consent.⁴¹ Other strategies to demean complaints include discovering the complainant’s medical or other personal records to imply a troubled past, previous risk-taking or a pattern of ‘promiscuity’.⁴²

Reliability of complainant’s accounts of rape

During the Four Corners programme, Dr Ellie Freedman, the medical director of the Northern Sydney Sexual Assault Service who documented Ms Mullin’s complaint and conducted the forensic examination, emphasised that rape victims’ first accounts are not always complete and that sleep deprivation (Ms Saxon had not slept for more than 24 hours when she gave her account to Dr Freedman) may compromise a victim’s recall of all the details of the traumatic event. A victim’s detailed recall of a traumatic event may also be impaired, particularly when the victim dissociates during the traumatic event or develops post-traumatic stress disorder.⁴³

Fight, flight or freeze in rape

The term ‘fight or flight’ response recognises two alternative behaviours which occur in the context of a perceived serious threat. As first elaborated in animal studies, when there is a perception of little immediate prospect of escape or little likelihood of prevailing against a predator, some subjects may ‘freeze’ or ‘play dead’. Although freezing or ‘tonic immobility’ in the context of an acute threat may seem to be counterintuitive, it may actually be adaptive when an attack may be provoked by movement or when immediate immobility offers the later opportunity for escape when a predator believes the subject to be inert or dead.⁴⁴ There is an accumulating literature in which victims report making no verbal or physical response and feeling ‘immobilised’ or ‘frozen’ during a rape.⁴⁵

Statutory definitions of sexual assault

Jurisdictions in Australia have differently worded statutory definitions of ‘sexual assault’,⁴⁶ which is the term often adopted to refer to rape or sexual intercourse without consent. At common law, consent must be ‘freely given’.⁴⁷ As the High Court also emphasised in Gillard v The Queen [2014] HCA 16, consent that is negated is no consent. In Getachew v The Queen (2012) 248 CLR 22, the High Court stated (at [27]):

An accused’s belief that the complainant may have been consenting, even probably was consenting, is no answer to a charge of rape. It is no answer because each of those forms of belief demonstrates that the accused was aware that the complainant might not be consenting or, at least, did not turn his or her mind to whether the complainant might not be consenting.⁴⁸

Tasmania has the most prescriptive sexual consent provisions in Australia. By section 2 A (Consent) of the Criminal Code Act 1924 (Tas), a person does not freely agree to an act if the person:

• Does not say or do anything to communicate consent; or

• Agrees or submits because of force, or a reasonable fear of force; or

• Agrees or submits because he or she is overborne by the nature or position of another person; or

• Is asleep, unconscious or so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter for which consent is required

The Australian Capital Territory (ACT) is the only jurisdiction in Australia without a definition of consent. The ACT also does not have any provision requiring any mistaken belief in consent to be ‘honest’ and ‘reasonable’.

In September 2018, the Justice and Community Safety Committee of the Australian Capital Territory Parliament held hearings into a private members bill, the Crimes (Consent) Amendment Bill 2018, which defined consent as ‘free and voluntary agreement’ and required the accused in cases of alleged rape to prove they knew or were ‘satisfied on reasonable grounds’ that consent was freely given.⁴⁹ However, in a scathing submission, the ACT Director of Public Prosecutions described the proposed legislation as ‘misconceived’ and ‘confusing’ and ‘probably regressive’ and that the proposed provisions conflated the different aspects of consent whilst ignoring the crucial aspect of ‘recklessness’.⁵⁰ In its submission, the ACT Bar Association raised similar concerns,⁵¹ highlighting that whilst the Bill introduced an ‘affirmative communicative model for consent’, it was not clear that the proposed provisions achieved that goal. The ACT Bar Association warned that, as well as creating a legal liability notwithstanding the existence of an honestly held belief that the complainant was consenting, the Bill may cast a legal burden on the accused to prove that he/she was satisfied on reasonable grounds that the agreement was freely and voluntarily given. Whilst the Bill not only shifted the ultimate onus of proof to an accused, the use of the term ‘satisfied’ lifted the level of satisfaction from a lower threshold of ‘belief’.

New South Wales Law Reform Commission - Consent in relation to sexual offences

Following the Four Corners programme “I Am That Girl,” the NSW Attorney-General announced that the NSW Law Reform Commission would review and report on consent in relation to sexual assault offences. In October 2019, the Commission produced draft proposals to amend s 61HA of the Crimes Act 1900 (NSW).⁵² Arguably, the Commission’s most controversial proposals related to the meaning of “consent” and jury directions.

The meaning of consent

By Proposal 5.2, the draft s 61HI(2) provided that “A person may, by words or conduct, withdraw consent to a sexual activity at any time before or during the sexual activity. Sexual activity that occurs after consent has been withdrawn occurs without consent.”

The Commission suggested that the proposed amended subsection clarified that whilst a person can withdraw consent at any time before or during the sexual activity, that the withdrawal of consent must be communicated. The Commission suggested that the reference to withdrawal of consent “by words or conduct” would not require any specific form of words or actions. A person may, for example, indicate withdrawal of consent with body language even if consent was previously given verbally.

By Proposal 6.1, the draft s 61HJ(1)(a) provided that “A person does not consent to a sexual activity if (a) the person does not do or say anything to communicate consent …”

The Commission suggested that the law provide that a person who does not do or say anything to communicate consent does not, in law, consent to a sexual activity. Referring to the Criminal Code (Tas) s 2A(2)(a) and the Crimes Act 1958 (Vic) s 36(2)(l), the Commission emphasised that without communication of consent, there is no consent. The Commission suggested that the draft s 61HJ(1)(a) reflected the ‘communicative model’ of consent by which consent is not just an internal state of mind, but a communicated state of mind.⁵³ The Commission suggested that consent must be given by one person to another and that the proposed draft s 61HJ(1)(a) would also recognise, for example, that a person who “freezes” out of fear and is unable to communicate does not consent.

At the end of the Four Corners programme, Saxon Mullin suggested that “enthusiastic consent” should be a prerequisite for lawful sexual intercourse:

“If it is not an enthusiastic yes, it’s a no. That’s it, and then, you’re committing a crime. Simple as that.”

With very reasonable justification, Ms Mullins feels greatly aggrieved because she did not consent to the intercourse with Mr Lazarus. However, it is very respectfully suggested that the concept of “enthusiastic consent” is not susceptible to a fair and consistent application in all contexts. Many sexual encounters occur in circumstances which are perfectly quiet, highly nuanced and without any spoken words and yet completely consensual. Consent may be conveyed in a variety of ways including in ways in which nothing is said. The understanding or recognition of gestures or particular behaviours or the prelude to the encounter may depend on the individual experiences of the two protagonists including their experiences from previous consensual encounters between them. At the time of the events in the Soho Nightclub in 2013, s 61 HA (Knowledge about consent) of the Crimes Act 1900 (NSW) fairly allowed for such nuance, whilst at the same attempted to proscribe sexual assaults. Any statutory provision must allow some scope for an honest misunderstanding on the part of a person who initiates a sexual encounter. The concept of “enthusiastic consent” not only ignores the very realistic prospect of consent being communicated indirectly or by nuance, but also ignores the equally realistic prospect of a defendant having a mistaken belief about consent based on reasonable grounds. The communicative model of consent proposed by the Commission accommodates both these matters and should thus be preferred to the concept of ‘enthusiastic consent.’ That is not to say that Mr Lazarus behaved properly on 11 May 2013. Clearly, he did not.

Jury directions on consent - a mandatory direction

Acknowledging the research demonstrating that misconceptions persist in the community which may affect how jurors make decisions about consent and sexual offending, the Commission endorsed the role jury directions can play in addressing these misconceptions or assumptions.⁵⁴ Noting that a number of Australian and other jurisdictions already have jury legislated directions,⁵⁵ the Commission emphasised the efficacy of directions designed to guide jurors as they consider whether the prosecution has proved that

• the complainant did not consent, and

• the accused person knew that the complainant did not consent.

Because trials of alleged sexual offences uniquely generate misconceptions and assumptions, the Commission suggested that jurors need to be aware of their own assumptions, so they can interpret the evidence and apply the law correctly. The Commission supported a flexible process, in which only one mandatory direction, expressed in general language, would be given with resort to other directions only in certain circumstances. The Commission proposed that a new statutory direction be included in the Criminal Procedure Act, requiring judges to specifically tell jurors to examine their assumptions about sexual offending and consent.

The Commission emphasised that it was not proposed that judges be required to use a particular form of words when giving such a direction. The Commission explained that it was intended that judges be able to tailor the directions to the facts, and that the proposal may also avoid appeals on the ground that the judge did not use the exact words in the legislation.

By Proposal 8.1, the draft s 292(2)–(5) provided that “In a trial to which this section applies, the judge must—

(a) give the direction in subsection (5), …

(5) Assumptions about consent – Direction

The jury must carefully examine any assumptions that the jury may have about—

1. non-consensual sexual activity and the people who experience it, and

2. the circumstances in which people consent to a sexual activity.

Given that research suggests that directions given earlier in a trial can have more impact than those given at the end, and that repeating jury directions at different times during the trial can help jurors understand them, the Commission proposed that judges would be able to give and repeat the direction at any suitable time during a trial.

However, there are significant controversies around jury directions, particularly in cases of alleged sexual offences. The Criminal Procedure Act 1986 (NSW) already features provisions designed to address some of the misconceptions and assumptions which abound in sexual offence cases. A trial judge is required to direct that the absence of complaint or ‘early complaint’ does not necessarily indicate a false complaint.⁵⁶ A trial judge may also direct that a complainant may not remember all the details of a sexual offence, or may not describe a sexual offence in the same way each time, and that trauma may affect complainants differently, including how they recall events.⁵⁷ A trial judge is prohibited from warning a jury, or making any suggestion to a jury, that complainants as a class are unreliable witnesses and a trial judge is prohibited from warning a jury of the danger of convicting on the uncorroborated evidence of any complainant.⁵⁸

There are also compelling arguments for leaving the nature and timing of directions to the discretion of the trial judge. Judicial directions have been described as “one of the great legal fictions” and “judicial wishful thinking.”⁵⁹ An extensive review of the literature concluded overwhelmingly that directions to juries are not well understood and therefore may not be helpful.⁶⁰ Law Reform Commission studies have found that a significant proportion of successful appeals against convictions are based, at least in part, on errors by judges in directing juries.⁶¹ In 2008, the NSW Law Reform Commission cited the results of a survey which found that between 2001–2004, the NSW Court of Appeal allowed 70 of 136 (51%) appeals from sexual offence trials, and that 54% of the successful appeals were upheld on the basis of misdirection.⁶² In 167 of 315 (ie. 53%) of successful conviction appeals, the appeal court found that the trial judge had given one or more misdirections or failed to give a necessary direction.⁶³ In 124 of these 167 misdirection cases (ie. 39 % of successful appeal cases), one or more misdirections were the only basis for allowing the appeal.

In Zoneff v The Queen (2000) CLR 234, Kirby J acknowledged (at [67]) that jurors may be “dumbfounded” by judicial statements about the law and that judges accept that there is “an element of sophistry” in the presumption that juries always follow their instructions. In KRM v The Queen (2001) 206 CLR 221, McHugh J observed (at [37]) that the more directions and warnings juries are given the more likely it that they will forget or misinterpret some directions or warnings.⁶⁴

In 1904, US Supreme Court Justice Oliver Wendell Holmes Jr. first used the adage “Hard cases make bad law.” That legal maxim has been used to emphasize that an extreme or complex case may be a poor basis for a general law that applies to a wider range of less extreme or complex cases. Each of the decisions in the two trials of Luke Lazarus, as the law stood in 2013, may well be an example of a ‘hard case.’

Ethical standards

Declaration of conflicts of interest

Joseph Briggs has declared no potential conflicts of interest.

Russ Scott has declared no potential conflicts of interest.

The views expressed are the authors’ and are not representative of Legal Aid Queensland or Queensland Health.

Ethical approval

This article does not contain any studies with human participants or animals performed by the authors.

Informed consent

No individual participated in any study.

The facts of the case were reported in detail in the media and continue to be available as open source material.

The facts of the case also appear in the published decisions:

NSW Court of Appeal in R v Lazarus [2016] NSWCCA 52

NSW Court of Appeal in R v Lazarus [2017] NSWCCA 279