Charlie Thomas Star v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0248

CHARLIE THOMAS STAR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, EMERTON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2020
DATE OF ORDERS:	18 November 2020
DATE OF REASONS:	22 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 331
JUDGMENT APPEALED FROM:	[2019] VCC 1822 (Judge M Sexton)

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CRIMINAL LAW – Appeal – Conviction – Rape – Inconsistent verdicts – Applicant tried on three charges of rape – Convicted on one charge, acquitted on second, jury unable to agree on third – Co-accused tried on five charges of rape – Acquitted on four charges, jury unable to agree on fifth – All charges involved same complainant – Consent in issue – Crown case depended on complainant’s credibility – Whether sole guilty verdict reconcilable with acquittals – No rational explanation – Appeal allowed – Conviction quashed – Verdict of acquittal entered – McKenzie v The Queen (1996) 190 CLR 348 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC	Kerry R Clancy
For the Respondent	Mr B L Sonnet	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
EMERTON JA
WEINBERG JA:

Summary

1. The applicant (S)[1] and his co-accused (B)[2] faced multiple charges of rape following an incident at a birthday party in late 2017.  There were eight rape charges on the indictment:  three against S and five against B.  All of the offences were alleged to have been committed against a 17-year-old girl (K). 

   [1]The abbreviation is used for ease of reference not anonymity.

   [2]The abbreviation is used for ease of reference not anonymity.

1. The prosecution case was that K did not consent to any of the acts of penetration the subject of the rape charges.  S admitted to taking part in acts of penetration with K but maintained that they were all consensual.  B also admitted to taking part in acts of penetration with K, which he said were all consensual, but denied that they were the acts of penetration the subject of the charges against him.

1. The jury acquitted B of four charges and were unable to reach a verdict on the fifth.  They convicted S of one charge of rape (charge 6), acquitted him of another and were unable to reach a verdict on the third.  S sought leave to appeal against his conviction on that single charge of rape by an act of anal penetration.

1. His principal ground of appeal was that the guilty verdict on charge 6 cannot be reconciled, logically or rationally, with the jury’s delivery of not guilty verdicts on five other charges and their inability to reach agreement on the remaining two charges.  The other pleaded ground was that the conduct of the trial created an unacceptable level of confusion regarding the account given by S of the circumstances relating to charge 6.  In the course of oral argument, however, the tenor of the submission changed, and it was contended that the judge…