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Amato v The Queen

Amato v The Queen

Case [2013] VSCA 346 3 December 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0074
ANDREW AMATO	Applicant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, PRIEST JA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 October 2013
DATE OF JUDGMENT	3 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 346

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CRIMINAL LAW – Appeal – Conviction – Rape, indecent assault – Applicant acquitted of rape, convicted of indecent assault – Whether verdicts inconsistent – Consent – Belief in consent – Verdicts not illogical or unreasonable – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S A Moglia	Marich Legal
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the respective reasons for judgment of Priest JA and Lasry AJA. Their Honours have set out in detail the factual circumstances out of which the charges on the indictment arose. They have clearly exposed the competing arguments on the sole ground of appeal, which contends that the guilty verdict on Count 1 is inconsistent with the not guilty verdicts on the two other counts.

Like Lasry AJA, I have concluded that leave to appeal should be granted, but the appeal dismissed. I respectfully agree with the reasons which his Honour gives for rejecting the ground of appeal. I would add the following only by way of elaboration.

Complaints of inconsistent verdicts are advanced in this Court with some frequency, particularly in cases of sexual offences. The complaint rarely succeeds. This is hardly surprising, in my view, given that success on the inconsistency ground involves persuading the appellate court that no logical or rational basis can be found for reconciling the verdicts in question. Put another way, it must be shown that no reasonable jury, applying their minds properly to the facts of a case, could have arrived at those (differential) verdicts.

As counsel for the applicant acknowledged, appellate courts have consistently expressed reluctance to come to such a conclusion.[1] As the High Court explained in MacKenzie v The Queen, that reluctance reflects both ‘respect for the function which the law assigns to juries (and the general satisfaction with their performance)’.[2] Experience shows that juries take their role very seriously, discharge their duty conscientiously, and — relevantly — follow directions to consider each count separately.[3] The present case was no exception. As Priest JA has pointed out, more than once in the course of their deliberations the jury asked the judge pertinent questions about the central issue of consent.[4]
[1]R v Markuleski (2001) 52 NSWLR 82, 99 [70]; R v JA [2008] VSCA 169, [48]; Goldsmith v The Queen [2010] VSCA 99, [51]; Fattal v The Queen [2013] VSCA 276, [36] (‘Fattal’); R v Motlop [2013] QCA 301, [47].
[2]MacKenzie v The Queen (1996) 190 CLR 348, 367.
[3]Fattal [2013] VSCA 276, [36]; R v PMT (2003) 8 VR 50, 56–7; Andrew…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amato v The Queen

Details

AGLC: Amato v The Queen [2013] VSCA 346
Case: [2013] VSCA 346
Decision Date: 3 December 2013

CaseChat Overview and Summary

Amato was convicted of indecent assault and acquitted of rape. The case was appealed to the court, which considered whether the verdicts were inconsistent and whether there was a legal issue regarding consent and belief in consent. The court had to determine if the verdicts were illogical or unreasonable given the evidence presented.

The primary legal issue before the court was whether the verdicts of acquittal on the charge of rape and conviction on the charge of indecent assault were inconsistent, particularly in light of the applicant's belief in consent. The court examined the evidence and the applicant's belief in the complainant's consent to determine if this belief could coexist with the charged offence of indecent assault. The court had to assess the logical coherence of the verdicts, given the evidence and the legal principles surrounding consent and belief.

The court found that the verdicts were not illogical or unreasonable. It held that the applicant's belief in consent did not preclude a conviction for indecent assault, as the belief in consent did not negate the non-consensual nature of the acts. The court concluded that the jury was entitled to believe the applicant's evidence and still find him guilty of indecent assault. The appeal was therefore dismissed.

No specific orders were made beyond the dismissal of the appeal. The conviction for indecent assault and the acquittal for rape stood as decided by the trial court.

Orders