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…
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- AGLC
- Andrew v The Queen [2013] VSCA 333
- Case
- [2013] VSCA 333
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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