DPP v Butcher (County Court of Victoria, Judge Hassan, 3 April 2023) (Conviction); [2023] VCC 1124 (Sentence)
---
CRIMINAL LAW – Conviction – Application for leave to appeal – Applicant charged on indictment with two charges of sexual assault and five charges of rape – Jury returned verdicts of guilty on one charge of sexual assault and one charge of rape (charge 6) – Applicant and complainant were work colleagues and friends – Applicant took complainant back to his home after work function – Complainant intoxicated – Complainant fell asleep in applicant’s bed – Complainant alleged she was repeatedly woken by applicant penetrating her vagina with his penis – Charge 6 charged one sexual penetration only – Whether charge 6 bad for latent duplicity – Charge 6 not latently duplicitous – Leave to appeal refused.
CRIMINAL LAW – Conviction – Application for leave to appeal – Whether verdicts inconsistent – Verdicts can be reconciled and are logically explicable – Different verdicts product of the jury carefully considering evidence – Verdicts not unreasonable – Leave to appeal refused.
CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant photographed complainant while complainant sleeping – Use of an optical surveillance device – Summary offence – Whether sentence manifestly excessive – Serious example of the offence – Leave to appeal refused.
CRIMINAL LAW – Sentence – Application for leave to appeal – Use of an optical surveillance device – Summary offence – Whether judge imposed sentence on the wrong factual basis – Judge mistakenly proceeded upon wrong factual basis – Prosecution cannot depart from way it conducted the plea – Material error established – No reasonable prospect that the Court would reduce the total effective sentence despite error in the sentence first imposed – Leave to appeal refused.
[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 Butcher v The King
Sign in free to access the full text
Details
AGLC
Butcher v The King [2024] VSCA 322
Case
[2024] VSCA 322
Decision Date
CaseChat Overview and Summary
The case of Butcher v The King involves the applicant, who was convicted by a jury on one charge of sexual assault and one charge of rape. The applicant applied for leave to appeal against his conviction and sentence. The legal issues in the case centred on whether the charge of rape was latently duplicitous, whether the verdicts were inconsistent, whether the sentence was manifestly excessive, and whether the sentence was imposed on the wrong factual basis. The court held that the charge of rape was not latently duplicitous, as the charge was based on a single act of sexual penetration. The court found that the verdicts could be reconciled and were logically explicable, and that the sentence was not manifestly excessive. However, the court found that the sentence was imposed on the wrong factual basis, as the judge had mistakenly proceeded on a different factual basis than that presented by the prosecution. The court held that there was no reasonable prospect that the Court would reduce the total effective sentence despite the error in the sentence first imposed.
The Court considered the evidence and the arguments presented by both parties, including the complainant's evidence and the defence case. The Court held that the charge of rape was not latently duplicitous, as the charge was based on a single act of sexual penetration. The Court found that the verdicts could be reconciled and were logically explicable, and that the sentence was not manifestly excessive. However, the Court found that the sentence was imposed on the wrong factual basis, as the judge had mistakenly proceeded on a different factual basis than that presented by the prosecution. The Court held that there was no reasonable prospect that the Court would reduce the total effective sentence despite the error in the sentence first imposed. The applicant's application for leave to appeal was refused.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is necessary to recount the facts in some detail. We first detail the way that the evidence unfolded at trial. We will then outline the broad architecture of the prosecution and defence cases at trial.(1)The complainant’s evidence(a)Background evidence The complainant and the applicant were work colleagues. The complainant was an administrative assistant, and the applicant was employed as a manager. The complainant did not report directly to the applicant. The complainant gave evidence that she and the applicant were ‘good enough friends’. Together with other colleagues, they would socialise both during and outside of work, including by getting coffee and having drinks after work. On 25 July 2019, the complainant and the applicant attended a work dinner at a restaurant in the Melbourne central business district. The complainant said that the dinner commenced at approximately 7:30 pm. She agreed that about 17 people were in attendance, which included colleagues and external stakeholders. The dinner included the consumption of alcohol. The complainant estimated that, in total, ‘about 15 bottles [of wine] were shared’. She said that she consumed five to 10 glasses of wine. She could not recall the exact amount. Following the dinner, the complainant said that she, the applicant, and three other colleagues walked a short distance to a nearby bar. She described herself as ‘fairly drunk’ and ‘heavily intoxicated’. She could not ‘remember the steps getting there’ and did not ‘remember much of being at the second bar’. The complainant said that she went out the front of the bar to have a cigarette with the applicant. She remembered sitting on the ground. She felt ‘sick’ and ‘dizzy’ and eventually vomited. She could not remember how many times she vomited but gave evidence that she ‘vomited the whole time [she] was outside’. While she could not say whether the applicant saw her vomiting, she thought he was standing in front of her while he was smoking. At some point, the group made a decision to leave. The complainant thought that this was around 2:00 am, but she could not be certain. She said that she had intended to go to her partner’s house in Moonee Ponds. She recalls ordering an Uber to take her there. When the Uber arrived, the complainant said that the applicant got into the car with her. She said that, at the time, she was not sure why the applicant had followed her. The complainant alleged that the applicant asked the Uber driver to change the destination address to the applicant’s address.[8] The Uber driver told the applicant to do this via the Uber application. The complainant said that the applicant then took her phone out of her hands and changed the destination. She said that there was no discussion between her and the applicant about them going to his house.[8]Some six weeks after the commission of the offence, the police obtained a statement from the Uber driver. The Uber driver could not remember this trip, nor whether he had a conversation with the applicant. In her charge, the trial judge gave the jury a forensic disadvantage direction with respect to this evidence.