Bullmore v The Queen

[2017] VSCA 41

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0146

DAVID NIGEL BULLMORE	Applicant
V
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2017
DATE OF JUDGMENT:	8 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 41
JUDGMENT APPEALED FROM:	DPP v Bullmore (Unreported, County Court of Victoria, Judge Mason, 8 April 2016 (Conviction))

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CRIMINAL LAW – Application for leave to appeal – Conviction – Rape – Whether verdict unsafe and unsatisfactory – Inconsistencies in complainant’s account of the offending – Inconsistencies in complainant’s account of peripheral matters – Deficiencies and delay in evidence of complaint – Where oath-on-oath case – Where evidence given of text messages that were not themselves produced – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Palmer with Ms M Casey	Victoria Legal Aid
For the Crown	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WARREN CJ
PRIEST JA
KIDD AJA:

Introduction

1. On 8 April 2016, the applicant (born 17 April 1959 and now aged 57), was convicted of the single charge of rape under the Crimes Act 1958 following a brief trial in the County Court.  Following a plea on 27 May 2016, the applicant was sentenced on 5 July 2016 to a term of imprisonment of 3 years, with a non-parole period of 2 years.

1. The applicant appeals against his conviction.  He initially advanced two grounds of appeal:

Ground 1 – The verdict is unsafe or unsatisfactory in that it is unreasonable or incapable of being supported having regard to the evidence.

Ground 2 – There has been a substantial miscarriage of justice in that the trial judge erred in his treatment of the text messages.

1. At the oral hearing of the matter the applicant abandoned Ground 2.  Accordingly, there remains only the unsafe and unsatisfactory ground to deal with.

   The evidence of the complainant at trial

2. The complainant and her husband were involved with Amway, a business that distributes products, in the early 2000s.  The applicant introduced them to the Amway business and held a mentor position in the business structure.  Later, the complainant ceased her involvement with Amway (mainly because of the breakdown in her marriage) and therefore ceased seeing the applicant (with whom contact up until then had been quite regular).  Around two years after the separation from her then husband, the complainant was contacted by the applicant who said he would like to catch up, and she accepted.

3. On the night in question, the applicant arrived, with a bottle of Jim Beam, at the complainant’s house just before dinner.  He sat together with the complainant and her three children talking.  The complainant consumed ‘probably four drinks’ of Jim Beam and Coke but tipped out other drinks when the applicant was not looking.  The applicant was drinking a lot.  At one point the applicant drove to a bottle shop with the complainant’s daughters and purchased more alcohol.  The…