Damian Webster (a pseudonym) v The Queen - [2021] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0197

DAMIAN WEBSTER (a pseudonym)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2021
DATE OF JUDGMENT:	10 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 14
JUDGMENT APPEALED FROM:	DPP v Webster (a pseudonym) [2019] VCC 1437 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Conviction – Jury found applicant guilty of four of seven charges of rape – Whether on the evidence it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect of those four charges – Whether inconsistent verdicts – Evidence capable of supporting verdicts – No inconsistency – Leave refused – Woods v The Queen [2019] VSCA 259 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T F Danos	Victoria Legal Aid
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
McLEISH JA
NIALL JA:

Following a trial in the County Court, the applicant was convicted of four charges of rape and acquitted on another three charges of rape. The complainant was the applicant’s domestic partner at the time. The applicant and the complainant formed an intimate relationship and lived together from mid-2015. The relationship came to an end in February 2016. The prosecution alleged that the applicant penetrated the complainant’s vagina with his finger on one occasion and his penis on six occasions when the complainant was asleep or, on one occasion, pretending to be asleep.

The applicant denied that the offending occurred.

A jury convicted the applicant on charges 1, 5, 6 and 7. He was acquitted on charges 2, 3 and 4. He seeks leave to appeal the convictions recorded on charges 1, 5, 6 and 7 on the basis that they are unreasonable and/or cannot be supported having regard to the evidence. In his particulars appended to that ground, he contends that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt in respect of each charge. Further, he contends that the verdicts of guilt are inconsistent with the findings of not guilty on charges 2, 3 and 4.

In order to understand the argument that the guilty verdicts are inconsistent with the acquittal on charges 2, 3 and 4 it is necessary to refer to the evidence on each of the seven charges. It is convenient to do that in chronological order.

The evidence

The complainant said that she and the applicant engaged in consensual sexual activity on a regular basis. She also said that drug use, including the ingestion of ice, was a regular feature of the relationship in its later months.

She said that on a number of occasions she awoke from her sleep to discover the applicant having sexual intercourse with her in circumstances where she had no recollection of having fallen asleep or of engaging in…

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 Damian Webster (a pseudonym) v The Queen

Details

AGLC: Damian Webster (a pseudonym) v The Queen [2021] VSCA 14
Case: [2021] VSCA 14
Decision Date: 10 February 2021

CaseChat Overview and Summary

In the case of Damian Webster against The Queen, the applicant, whose identity is protected by a pseudonym, sought leave to appeal against his conviction for four of seven charges of rape. The jury found him guilty of these charges, and the applicant argued that the evidence was insufficient to support the jury's conclusion beyond reasonable doubt. He also claimed that the verdicts were inconsistent. The case was heard in the Supreme Court of Victoria.

The court had to determine whether the evidence was sufficient for the jury to find the applicant guilty of the four rape charges beyond reasonable doubt. Additionally, the court examined whether the verdicts were inconsistent. The court considered the standard of review applicable to such appeals and whether the jury could have reasonably reached the conclusions it did based on the evidence presented.

The court found that the evidence was capable of supporting the jury's verdicts, and there was no inconsistency in the verdicts. The court applied the principles established in Woods v The Queen [2019] VSCA 259, which sets out the test for inconsistent verdicts. The court concluded that the jury's decision was open to them based on the evidence and that there was no inconsistency. Therefore, the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal was dismissed, and no further appeal would be permitted. The applicant's convictions for the four rape charges remained in place.

Orders