and David Edwin Rapson v The Queen - [2014] VSCA 356

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0248
DAVID EDWIN RAPSON	Applicant
v
THE QUEEN	Respondent

---

JUDGE:	NETTLE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing requested
DATE OF JUDGMENT:	29 April 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 356
JUDGMENT APPEALED FROM:	DPP v Rapson (Unreported, County Court of Victoria, Judge Gaynor, 17 October 2013)

---

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

---

DETERMINED ON THE PAPERS
JUDGMENT DELIVERED IN OPEN COURT

---

APPEARANCES:	Counsel	Solicitors
No appearance by leave of the Court

NETTLE JA:

Following a trial in the County Court, the applicant was convicted of five charges of rape and eight charges of indecent assault committed over a period of several years between 1975 to 1977 (Charges 1–4) and 1987 to 1990 (Charges 5–13). The applicant was a Christian brother and later a priest who served as a teacher and ultimately deputy headmaster at a Roman Catholic boys’ secondary school. He was alleged to have committed the offences at the school against boys in his charge.

The one proposed ground of appeal is that the judge erred in treating the evidence of each complainant as cross-admissible as tendency evidence. The evidence so admitted was described by the judge[1] as follows:
[1] Ruling dated 15 August 2013.

Complainant A … Charge [1] [indecent assault on a male] … allegedly occurred in 1975 or ‘76 when A [then 11 or 12 years’ old] was on a school day retreat at a catholic college where the accused was training to be a priest. The accused allegedly saw A, invited him into his bedroom, talked to him about sexual feelings, pulled out A’s penis, masturbated it and at the same time pulled out his own penis and masturbated that.
Charge [2], indecent assault on a male between January and June 1975 involved … B, a 12 year old, Year 7 boarder. One morning, boys in his dormitory were ordered, four at a time, to a room at the end of the dormitory, wearing only a singlet and underpants for a medical examination. In the room were the accused and two other priests. [T]he boys were ordered to look straight ahead, pull their underpants to their knees … [T]he accused allegedly walked to B, grabbed hold of his penis, held it up and fondled [B’s] testicles for about 60 seconds.
Charges [3] and [4], indecent assault on a male in 1977, involved C, a Year 10 boarder at the school, aged 15 or 16, who fell asleep on a school infirmary bed where he was sent in the late afternoon after taking an antihistamine for a bee sting. He was woken by a group of students brought into the infirmary by the accused … [The accused] … forced them to drink one or two mugs of Milo, which C found tasted strong and acrid, so drank only part of one, hiding his mug. Lights were turned…

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 and David Edwin Rapson v The Queen

Details

AGLC: and David Edwin Rapson v The Queen [2014] VSCA 356
Case: [2014] VSCA 356
Decision Date: 29 April 2014

CaseChat Overview and Summary

In the matter of David Edwin Rapson versus The Queen, the dispute was heard and determined on the papers. The respondent, the Crown, sought to appeal against a decision made by a single judge of the Federal Court of Australia in relation to an application for a writ of habeas corpus. The appellant argued that the single judge had erred in law by not considering the relevant statutory provisions and case law in relation to the jurisdiction of the court to grant a writ of habeas corpus.

The court was required to determine whether the single judge had erred in law in failing to consider the relevant statutory provisions and case law in relation to the jurisdiction of the court to grant a writ of habeas corpus. The court also needed to determine whether the single judge had exercised his discretion in an unreasonable manner by refusing to grant the writ of habeas corpus.

The court found that the single judge had not erred in law and had exercised his discretion reasonably. The court held that the relevant statutory provisions and case law did not confer jurisdiction on the court to grant a writ of habeas corpus in the circumstances of the case. The court also held that the single judge had exercised his discretion reasonably in refusing to grant the writ of habeas corpus. The appeal was therefore dismissed.

The final orders of the court were that the appeal be dismissed with costs. The court also made an order that the costs of the appeal be paid by the appellant to the respondent within 28 days.

Orders