C J J v The Queen

[2012] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0068
CJJ	Applicant/Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and OSBORN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	22 August 2012
DATE OF JUDGMENT:	22 August 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 196
JUDGMENT APPEALED FROM:	Unreported (County Court of Victoria, Bendigo, Judge Cotterell, Date of Sentence 2 February 2012)

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CRIMINAL LAW – Rape – Inconsistent verdicts – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Appellant	Mr M D Stanton	Victorian Aboriginal Legal Service, Ms J Prior
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. After a trial in the County Court the applicant was found guilty on one count of rape (count 3) and was acquitted on two further counts of rape (counts 1 and 2) and a count of attempted rape (count 4).  At the conclusion of the Crown case, the jury were directed to return a verdict of not guilty on another count of rape (count 5).

1. The principal Crown witness was a woman with whom the applicant had been in a sexual relationship for some three years.  The complainant gave evidence that the relationship ended in November 2005 and she began living with another man.

1. On the evening of 29 April 2006, the applicant came to the complainant’s house and said that he wanted to have sex.  The complainant said that she did not want to have sex with the applicant.  The complainant left the house to visit a friend and then went to visit another friend.  The applicant followed her.

1. The complainant returned to her house and the applicant followed her.  The complainant told the applicant that she did not want him to come in.  Nevertheless, the applicant entered the house and demanded to have sex with the complainant.  The complainant apparently agreed and both she and the applicant undressed in the bedroom.  The applicant put on a condom and the complainant said, ‘No, I don’t want to’ and started to get dressed.

1. The complainant gave evidence that the applicant then said that if she didn’t have sex with him, he would get a knife from the kitchen and cut her throat.  The applicant and the complainant then had a cup of tea or coffee in the lounge room.  In the lounge room, the applicant picked up a fork and held it to the complainant’s neck in a threatening manner.  The complainant and the applicant then returned to the bedroom and undressed.  The complainant said that the applicant got on top of her and penetrated her vagina with his penis (count 1), that he then penetrated her vagina with his tongue (count 2), that he then moved behind the complainant and penetrated her vagina with his penis (count 3), that he attempted to penetrate her

anus with a small vibrator (count 4) and then penetrated her vagina with his penis while she was on her back (count 5).

1. In a record of interview, the applicant maintained that although sexual activity had occurred between himself and the complainant, it was consensual. 

1. The applicant seeks leave to appeal against conviction.  It is only necessary to refer to one of the grounds, that the verdict of guilty was illogical and unreasonable having regard to the verdict of not guilty on other counts of rape and attempted rape.

1. Counsel for the respondent conceded that this ground had been established.  In my opinion, the concession is well founded.

1. The offences were part of a single episode.  The Crown case was that all the offences occurred after the applicant threatened the complainant and that the complainant only submitted because she was in fear.

1. While there existed grounds for the acquittals on counts 2 and 4, there was no discernable difference between the evidence given by the complainant in respect of count 1 and the evidence she gave in respect of count 3.  Nor was there other evidence which could explain the different verdicts.  I think that the different verdicts ‘represent … an affront to logic and common sense which is unacceptable and strongly suggest a compromise of the jury’s duty’.[1]

   [1]MacKenzie v R (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ).

1. Accordingly, I would grant leave to appeal, allow the appeal, quash the conviction and set aside the sentence passed thereon and direct that a judgment and verdict of acquittal be entered.

OSBORN JA:

1. I agree.  I would only add that the prosecutor had the benefit of hearing and seeing the evidence as it was presented at the trial.  The making of concessions such

as that made in the present case by Mr Ryan SC in the written case, and in turn by Mr Sonnet today in oral submission, is of material assistance to the Court and is a significant aspect of the exercise of the independent discretion of the Director of Public Prosecutions.  In turn, the exercise of that discretion is one of the essential safeguards against injustice arising from the operation of the criminal law.

BUCHANAN JA:

1. The orders of the Court will be as follows: 

1.        The application for leave to appeal against conviction is granted.

2.        The appeal is treated as instituted and heard instanter and is allowed.

3.        The conviction sustained by the appellant in the Court below and the sentence thereon is set aside.

4.        The Court directs that judgment and verdict of acquittal to the entered.

In Other Matters, Mr Stanton, it will be noted that the Court grants the appellant an indemnity certificate pursuant to the provisions of s 14 of the Appeal Costs Act.

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