Bakshi v The Queen - [2018] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0099

ASHISH BAKSHI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and KYROU JJA, and JANE DIXON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2018
DATE OF JUDGMENT:	9 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 83	First revision: 9 April 2018
JUDGMENT APPEALED FROM:	DPP v Bakshi (Unreported, County Court of Victoria, Judge Stuart, 16 March 2017 (Conviction), 7 April 2017 (Sentence))

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CRIMINAL LAW – Appeal – Conviction and sentence – Applicant convicted by jury of one charge of rape – Sentenced to five years and six months’ imprisonment with a non-parole period of three years – Complainant told applicant several times that she either ‘want[ed] to go home’ or ‘just want[ed] to go home’ while at his apartment – Whether applicant’s belief in consent reasonable in circumstances – Open to jury to find no reasonable basis for belief in consent –Verdict not unsafe or unsatisfactory – Whether ‘fresh evidence’ in Victim Impact Statement, if known, would have impugned complainant’s credibility – Nothing in Victim Impact Statement that would have given rise to reasonable doubt – Whether sentence manifestly excessive – Sentence within range – Crimes Act 1958 s 37G – M v The Queen (1994) 181 CLR 487, Libke v The Queen (2007) 230 CLR 559, R v Klamo (2008) 18 VR 644 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F H Todd with Mr S Norton	Stary Norton & Halphen
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
KYROU JA
JANE DIXON AJA:

On 16 March 2017, following a trial for rape in the County Court, the applicant was convicted of that offence. He was sentenced to five years and six months’ imprisonment with a non-parole period of three years. He now seeks leave to appeal against both conviction and sentence.

The grounds of appeal with respect to conviction, are as follows:

Ground 1: The verdict is unreasonable or cannot be supported having regard to the evidence in view of the cumulative effect of the following matters:
a. The fact that, at the end of its case, the Crown conceded that the evidence going to establish a lack of belief in consent comprised of two matters: the complainant’s earlier representation that she was a lesbian, and second, the statement made, sometime between sitting on the couch for a second time and penetration, had said the words ‘I want to go home’;
b. These statements fell to be assessed in light of all the evidence given by the complainant as set out [in the applicant’s Written Case];
c. The credibility of the complainant, strained at trial, was then further eroded by the subsequent filing of her Victim Impact Statement.

And
Ground 2: The Victim Impact statement dated 21 March 2017 comprised fresh evidence post-trial, which, if known to the jury might have led the…

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 Bakshi v The Queen

Details

AGLC: Ashish Bakshi v The Queen [2018] VSCA 83
Case: [2018] VSCA 83
Decision Date: 9 April 2018

CaseChat Overview and Summary

The appellant, Bakshi, was convicted by a jury of one count of rape and was sentenced to five years and six months’ imprisonment with a non-parole period of three years. The respondent, The Queen, was the party in the appeal. The issue before the court was whether the conviction and sentence should be upheld, specifically focusing on the reasonableness of the appellant’s belief in consent, the impact of fresh evidence, and the appropriateness of the sentence.

The court addressed whether the appellant's belief in consent was reasonable under the circumstances. The jury was entitled to conclude that there was no reasonable basis for the appellant’s belief in consent given the complainant’s clear communications that she wanted to leave. The court found that the verdict was not unsafe or unsatisfactory. The court also considered whether the fresh evidence in the Victim Impact Statement, if known, would have affected the credibility of the complainant. The statement did not provide any grounds that would have led to reasonable doubt regarding the complainant's account. Additionally, the court examined whether the sentence was manifestly excessive, finding it was within the appropriate range under the relevant statutory provisions.

The court concluded that the conviction and sentence were properly upheld. The jury's findings were supported by the evidence, and the sentence was within the statutory limits. The application for leave to appeal was therefore refused.

Orders