Prior to travelling by train to Kings Cross, the complainant and BW began drinking a mixture of soft drink and bourbon. It was the complainant’s first visit to Kings Cross. On the evening of, 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. 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. LUKE LAZARUS TRIALAfter 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. The case of R v Lazarus illustrates the difficulties inherent in the complex directions required to be given in rape trials. In these circumstances, cases turn on the credibility of the complainant and the question of consent. 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. There are usually no witnesses to serious sexual assaults. 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.Īlthough the NSW Court of Appeal in R v Lazarus 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. 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. In February 2015, after Huggett DCJ gave detailed directions to the jury, Lazarus was convicted and was sentenced to 5 years’ imprisonment. 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’. On, 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.
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