A jury thought there was evidence that the complainant in the Luke Lazarus rape case was not consenting … Yet the judges couldn’t find a way to accept that … Now we are likely to see some change to NSW’s version of “consent” … Community expectations at odds with the outcome 

About 60 percent of voters decided he should be recalled from the Santa Clara County Superior Court, where he had been a judge since 2003. 

Perske was the judge who sentenced Stanford student Brock Turner to six months imprisonment after he sexually assaulted an intoxicated and unconscious woman near a garbage bin. 

Turner served three months before being released in September 2016. He also got three years probation, was registered as a sex offender and kicked out of Stanford. 

Citizens were enraged by the lenient prison sentence. Michele Dauber, a law professor at the same university, who led the recall campaign, said: 

“We voted that sexual violence, including campus sexual violence, must be taken seriously by our elected officials and by the justice system.” 

Perske, apparently a well-respected judge, said he was only following the law. He thought a longer prison sentence would have a severe impact on the offender, although he did not mention the impact of the assault on the victim, known as Emile Doe, who described her experience here.  

In this country, voters can’t remove judges, which in some cases is unfortunate. 

The elected politicians in California also responded to the public outcry with new mandatory minimum sentences in sexual assault cases and shutting a loophole which allowed more lenient punishment where the victim was too intoxicated to resist. 

Similarly, in the wake of the Luke Lazarus case in Sydney there was public unhappiness about a justice system that saw a young man, after two trials and two appeals, walk away from a rape charge that arose from a nasty sexual encounter with an 18-year old woman in a laneway behind his father’s nightclub in Kings Cross. 

The dismay increased volubly following a 4 Corners interview with the victim, who revealed herself as Saxon Mullins. In response, the NSW attorney general, Mark Speakman SC, has taken an important first step. 

He’s asked acting Supreme Court judge Carolyn Simpson to lead a Law Reform Commission review of the consent provisions in relation to sexual assault – section 61HA of the Crimes Act, NSW, 1900. 

Speakman said: 

“One of the catalysts for the review was the case of Saxon Mullins, who endured four separate court proceedings relating to a charge of sexual assault.” 

Ms Mullins said she had been raped by Lazarus in the laneway and that she had not consented, as the accused claimed. 

She was a virgin, on her first trip to the Cross from the Central Coast, intoxicated, scared and fearfully obeying his commands to get on her hands and knees and arch her back so she could be anally penetrated. Lazarus has only met her a relatively short time beforehand on the dance floor. 

She told Lazarus, more than once, that she wanted to go back to her friends and to “stop”. In Tasmania, that would most likely have grounded a verdict of guilty. 

Judge Robyn Tupman, the second trial judge, disbelieved her evidence on this point and instead accepted tenuous evidence about the accused’s “good character”. 

Tupman found that Saxon Mullins did not consent to anal intercourse, but she said there was no evidence to support a finding that Lazarus knew she was not consenting, nor did she think he was reckless as to whether or not she was consenting, nor had the crown proved there were reasonable grounds for believing the complainant was not consenting. 

So we’re left with the idea that regardless of the victim’s fear and finding herself in a strange alleyway, there was no reasonable ground for an older, more experienced man, who was seeking another sexual “trophy”, to think she was not consenting to anal sex. 

The first trial was before Judge Sarah Huggett and a jury which found Lazarus guilty, whereupon he was sentenced to five years imprisonment, of which he served 10 months. 

In sentencing, Judge Huggett said that she was satisfied that Lazarus didn’t “care one way or the other” whether the victim was consenting. 

The verdict was overturned and a new trial ordered because the Court of Criminal Appeal found that the judge had misdirected the jury on the accused’s belief in Ms Mullins’ consent. 

In the interim, Judge Peter Zahra in the District Court acceded to Lazarus’ application for a judge-alone trial for the second round. 

This was so despite the fact that the last time any published information about the Lazarus case appeared was in April 2016, a year before his retrial. 

Zahra thought there was too much to quarantine from the jury’s mind and social media had lit up over his conviction and his subsequent appeal – once again establishing that in important cases the modern media and the jury system are incompatible institutions. 

The crown appealed Tupman’s acquittal, which late last year was dismissed by the CCA. Hoeben CJ at CL, Davies and Bellew JJ let Tupman off the hook for insetting the word “not” after she delivered her oral reasons. Originally she had said:

“I am entitled to take into account his level of self-induced intoxication, especially in deciding whether or not it was an honestly held belief …” 

The late arrival of “not” in the transcript was excused, even though the crown argued it showed that the accused’s intoxication was unsupportably part of her reasoning. The CCA on this point said that Tupman’s statements were “surplusage”. 

Nonetheless, the court of criminal appeal found that Tupman failed properly to have regard to any steps taken by the accused to determine whether the victim was consenting. 

Again, the reasoning process by the trial judge on consent was flawed. This ground of the appeal was made out, yet the CCA said there was no public interest in ordering a new trial. 

Justice Geoffrey Bellew, who wrote the main appeal reasons, said:

“I recognise that any criminal trial is an ordeal for a complainant, it is also an ordeal for an accused. Moreover, the circumstances which bring about the possibility of a retrial are not the fault of the respondent or those acting for him … it would, in my view, be oppressive to put the respondent to the expense and worry of a third trial in those circumstances.” 

Lucky Luke. 

Contrary to Judge Zahra’s thinking, Bellew did not believe that publicity would “impact adversely upon the respondent’s right to a fair trial” with a jury.

The outcome, as in California’s Brock Turner case, has not been universally respected by the community at large. The case had been taken away from a jury and was decided by judges in favour of a well-resourced accused who enjoyed a footing secured by privilege and family wealth. 

Judge Huggett got it wrong. Judge Tupman got it wrong. Judge Zahra looks as though he got it wrong and in exercising its discretion about the interests of justice the CCA was unpersuasive. 

Lazarus later declared to a radio audience:

“At the end of the day I’ve been found innocent.”  

The attorney general saw pretty quickly that the outcome and the troubled struggle to come to grips with the law had not been in step with community thinking. 

No one has lost their job or been voted off the bench, instead we’ve got a polite reference to the Law Reform Commission.