and Nitin Singh Rana v The Queen - [2014] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0034
NITIN SINGH RANA	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	ASHLEY and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2014
DATE OF JUDGMENT:	4 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 198
JUDGMENT APPEALED FROM:	DPP v Rana (Unreported, County Court of Victoria, Judge Wilmoth, Conviction 27 August 2013, Sentence 6 December 2013)

---

CRIMINAL LAW – Appeal – Conviction – Rape – Consent – Free agreement – Accused’s awareness that the complainant was not, or might not, be consenting – Incriminating conduct – Lies as incriminating conduct – Whether accused’s statements relied upon were merely a denial of the Crown case – Jury directions – Whether jury had to be unanimous as to whether they were satisfied beyond reasonable doubt either that the complainant did not consent, or that the complainant was so affected by alcohol or another drug as to be incapable of freely agreeing – Whether substantial miscarriage of justice – Jury Directions Act 2013, ss 22 and 23 – Crimes Act 1958, ss 36 and 37AA.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M Fitzgerald	Marich Legal
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agree with Beach JA, for the reasons which he gives, that leave to appeal against conviction should be refused on grounds 2, 3 and 4. Like Beach JA, I consider that ground 1 is reasonably arguable, and I would grant leave to appeal on that ground alone.

But in my judgment, grant of leave would not avail the applicant. The President certified, pursuant to s 11(1A) of the Supreme Court Act1986, that the Court as presently constituted may exercise all the jurisdiction and powers of the Court of Appeal. The parties were informed accordingly. I would dismiss the appeal because, assuming that ground 1 was made out, the applicant failed to establish that it occasioned a substantial miscarriage of justice.

I must explain my conclusions.

By s 22 of the Jury Directions Act2013, ‘incriminating conduct’ (which includes the telling of a lie by the accused) is defined to mean —

Conduct that amounts to an implied admission by the accused –
(a)of having committed an offence charged or an element of an offence charged.

One element of the crime of rape which the Crown must prove is that the necessary intentional penetration without consent was in circumstances where the offender is aware that ‘the person is not consenting or might not be consenting’. Consent means free agreement. By s 36, of the Crimes Act1958, one circumstance in which a person does not freely agree to act is where —

(d)the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing.

By s 37AA, if an accused asserts a belief that the complainant was consenting, the judge must direct the jury that…

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.

Keep reading for free

Create a free CaseChat account to read and Nitin Singh Rana v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSCA 198
Decision Date: 4 September 2014

CaseChat Overview and Summary

The case of and Nitin Singh Rana v The Queen involved an appeal against a conviction for rape. The central issue before the court was whether the jury had been correctly directed regarding the requirement for unanimous satisfaction of the accused's lack of consent from the complainant or her incapacity to freely agree due to intoxication. The appellant argued that the jury was not properly directed to consider both elements, which could have led to a substantial miscarriage of justice.

The legal issues the court needed to address were the adequacy of the jury directions concerning the elements of consent and intoxication in the context of a rape charge. The court had to determine whether the jury was required to be unanimous in their satisfaction that either the complainant did not consent, or she was incapable of freely agreeing due to alcohol or drug intoxication. This involved interpreting sections 22 and 23 of the Jury Directions Act 2013, alongside sections 36 and 37AA of the Crimes Act 1958.

In its reasoning, the court examined the jury directions given in the trial and found that they did not adequately cover the requirement for unanimous satisfaction regarding both elements of consent and intoxication. The court held that this was a misdirection and constituted a substantial miscarriage of justice. The appellant's statements, which were considered lies, were deemed significant as they went beyond mere denials of the Crown's case. The court concluded that the misdirection necessitated the quashing of the conviction and ordered a retrial.

The final orders of the court included the quashing of the appellant's conviction and the ordering of a retrial. The court held that the misdirection concerning the jury's unanimity on the issues of consent and intoxication was fundamental and could not be remedied by a mere review of the sentence. The appellant was to be retried on the original charges.

Orders