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Andrew v The Queen

Andrew v The Queen

Case [2013] VSCA 333 26 November 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0278

MARK ANDREW
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG and WHELAN JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 November 2013
DATE OF JUDGMENT	26 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 333
JUDGMENT APPEALED FROM	DPP v Andrew (Unreported, County Court of Victoria, Judge Montgomery, 11 May 2012)

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CRIMINAL LAW — Appeal against conviction — Rape and indecent assault — Convicted on two charges, acquitted of three — Different evidence relating to charges upon which appellant convicted — Whether verdicts inconsistent — Whether, by virtue of inconsistency between acquittals on charges 1 to 3 and conviction on charge 4, conviction on charge 5 otherwise unsafe or unsatisfactory — Verdicts not inconsistent — Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Mr C Carr	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The appellant stood trial in the County Court at Melbourne on three charges of rape (charges 2, 3 and 5) and two charges of indecent assault (charges 1 and 4). In relation to charge 2, the complainant’s evidence fell short of establishing an act which involved full sexual penetration. Accordingly the trial judge directed that a verdict of not guilty be entered in respect of that charge. His Honour did, however, leave the alternative and lesser charge of indecent assault to the jury in respect of that matter.

The appellant was ultimately acquitted by the jury on charges 1, 2 and 3. He was convicted on charges 4 and 5. He was sentenced on charge 4, the charge of indecent assault, to a term of 12 months’ imprisonment. In relation to charge 5, the charge of rape, he was sentenced to a term of four years’ imprisonment. Six months of the sentence on charge 4 was made cumulative upon the sentence on charge 5. That made a total effective sentence of four years and six months. A non-parole period of two years and six months was fixed.

Buchanan JA granted leave to appeal against conviction on the following ground:

1.The convictions on charges 4 and 5 are unsafe in the light of the evidence against the appellant and the acquittals on charges 1, 2 and 3.

Background facts

The following outline of the facts is taken largely from the Registrar’s Neutral Summary.

The appellant, who was aged 38 at the relevant time, and the complainant, then aged 20, were both employed by a debt recovery company. The appellant was in a relatively senior position with that organisation, whereas the complainant was, in effect, a receptionist. As it happened, the appellant was, at the time, in a relationship with Ms Shandelle Wade, the proprietor of the business. It seems that the complainant was on good terms with both the appellant and Ms Wade.

On 25 September 2009, the appellant and the complainant happened to be alone in the office. It was…

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 Andrew v The Queen

Details

AGLC: Andrew v The Queen [2013] VSCA 333
Case: [2013] VSCA 333
Decision Date: 26 November 2013

CaseChat Overview and Summary

The appellant was convicted on two charges of rape and indecent assault, and acquitted on three other charges of rape and indecent assault. The appellant appealed against the conviction, arguing that the verdicts were inconsistent and therefore the conviction was unsafe and unsatisfactory. The appeal was heard by the High Court of Australia. The central issue for the court was to determine whether the verdicts were inconsistent and, if so, whether this inconsistency rendered the conviction on the charges upon which the appellant was convicted otherwise unsafe or unsatisfactory. The court also considered whether the different evidence relating to the charges upon which the appellant was convicted affected the consistency of the verdicts.

The court held that the verdicts were not inconsistent and that the different evidence relating to the charges upon which the appellant was convicted did not affect the consistency of the verdicts. The court found that there was no logical inconsistency between the verdicts of acquittal on charges one to three and conviction on charges four and five. The court also held that the inconsistency between the acquittals and convictions did not render the conviction on charges four and five otherwise unsafe or unsatisfactory. The court found that the jury was entitled to believe the evidence of the complainants on charges four and five and to disbelieve the evidence of the complainants on charges one to three. The court held that the verdicts were open to the jury and that there was no error in the trial judge’s directions to the jury.

The appeal was dismissed. The convictions on charges four and five were upheld, and the appellant’s appeal against conviction was dismissed. The court found that the verdicts were not inconsistent and that the conviction on charges four and five was safe and satisfactory. The court held that the jury was entitled to believe the evidence of the complainants on charges four and five and to disbelieve the evidence of the complainants on charges one to three. The court found that the verdicts were open to the jury and that there was no error in the trial judge’s directions to the jury. The convictions on charges four and five were therefore upheld, and the appellant’s appeal against conviction was dismissed.

Orders