Dario Esposito (a pseudonym)[1] v The Queen - [2020] VSCA 245

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0126

DARIO ESPOSITO (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

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JUDGES:	PRIEST, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 September 2020
DATE OF JUDGMENT:	22 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 245
JUDGMENT APPEALED FROM:	DPP v [Esposito] (Unreported, County Court of Victoria, Judge Carmody, 19 October 2018) (Conviction)

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CRIMINAL LAW — Appeal — Conviction — Rape (6 charges) — Whether verdicts unreasonable — Prosecution case depended on complainant’s account — Whether complainant credible and reliable — Whether complainant a ‘witness of truth’ — Whether hypothesis consistent with innocence — Whether jury should have had a reasonable doubt as a result of applicant’s denials in police interview — Reasonably open to jury to convict — Leave to appeal refused — M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 376 ALR 478 applied — Criminal Procedure Act 2009 s 276(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Hands	Mr C Marshall & Associates
For the Respondent	Mr P Bourke	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
WEINBERG JA:

Conviction and ground of appeal

An indictment filed in the County Court charged the applicant with supplying a drug of dependence to a child[2] (charge 1) and six charges of rape[3] (charges 2, 4, 6, 8, 10 and 12).
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71B(1).
[3]Crimes Act 1958, s 38(1).

Following a trial, on 19 October 2018 the jury found the applicant guilty of the charge of supplying a drug to a child and the six charges of rape.[4] On 22 March 2019, the trial judge imposed a total effective sentence of nine years and six months’ imprisonment, with a non-parole period of six years and six months.
[4]Six charges of sexual penetration of a child under 16 years (charges 3, 5, 7, 9, 11 and 13) were laid as alternatives to the rape charges. Given the jury’s verdicts on the rape charges, there was no occasion to take verdicts on them.

The applicant seeks leave to appeal against conviction on a single ground, formulated in the relevant Notice as follows:

A. There was a substantial miscarriage of justice under s 276(1)(a) of the Criminal Procedure Act 2009 as outlined below:
1. The jury verdicts on charges 2, 4, 6, 8,10 and 12 [the rape charges] were unsafe and unsatisfactory.

In the written case, however, ‘particulars’ were appended to the ground, so that it is contended that

the jury verdicts on charges 2, 4, 6, 8, 10 and 12 were unsafe and unsatisfactory because:
(A)The evidence left open the alternative scenario consistent with innocence that the alleged offending was consensual and that the jury should have entertained a reasonable doubt about the allegation of rape.
(B) The jury should…

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 Dario Esposito (a pseudonym)[1] v The Queen

Details

AGLC: Dario Esposito (a pseudonym)[1] v The Queen [2020] VSCA 245
Case: [2020] VSCA 245
Decision Date: 22 September 2020

CaseChat Overview and Summary

Dario Esposito was convicted of six counts of rape and appealed against his conviction, arguing that the jury should have had a reasonable doubt in the face of his denials during a police interview. The appeal was heard in the High Court of Australia. The central legal issues in the appeal were whether the jury's verdicts were unreasonable, the credibility of the complainant, and whether the jury should have entertained a reasonable doubt due to the applicant's denials.

The court examined the complainant's credibility and reliability, considering whether she was a 'witness of truth'. The court also assessed the consistency of the hypothesis of innocence with the evidence presented. In applying the principles from M v The Queen and Pell v The Queen, the court found that it was reasonably open to the jury to convict the applicant, despite his denials. The hypothesis of innocence was not so compelling as to leave no room for doubt regarding the applicant's guilt. Consequently, the appeal was dismissed, and leave to appeal was refused under section 276(1)(a) of the Criminal Procedure Act 2009.

The final orders of the court were that the appeal was dismissed and no leave to appeal was granted. This decision reinforces the principle that the jury's role is to assess the credibility of witnesses and the overall reliability of the evidence, and to decide whether the prosecution has proven the case beyond reasonable doubt. The court underscored that it is not its role to re-evaluate the evidence or the credibility of witnesses in the context of an appeal against conviction.

Orders