Dwyer (a pseudonym) v The King - [2023] VSCA 85

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0133

HARRISON DWYER (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]This judgment has been anonymised by the adoption of pseudonyms to ensure that there is no possibility of identification of a victim of sexual offending.

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JUDGES:	T FORREST, MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2023
DATE OF JUDGMENT:	19 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 85
JUDGMENT APPEALED FROM:	DPP v Dwyer (a pseudonym) (Unreported, County Court of Victoria, 18 August 2022, Judge Lyon)

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CRIMINAL LAW – Appeal – Conviction – Rape – Whether verdicts unreasonable or cannot be supported having regard to the evidence – Whether complainant a reliable witness – Whether substantial miscarriage of justice occasioned by jury engaging in impermissible reasoning regarding post-offence conduct – No notice of incriminating conduct relied upon – Whether jury invited to reason that complainant did not consent to sexual activity by reason of intoxication – Crown not relying on intoxication as negating consent – Whether defence counsel misunderstood Crown case in relation to intoxication – Whether aggregation of defects amounted to miscarriage – Appeal allowed.

Jury Directions Act 2015, ss 23 and 47E.

Baini v The Queen (2012) 246 CLR 469 applied.

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Counsel
Applicant:		Mr DA Dann KC with Ms CA Boston
Respondent:		Mr P Bourke KC
Solicitors
Applicant:	Furstenberg Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
MACAULAY JA
TAYLOR JA:

Introduction and summary

The applicant was charged on a joint indictment with sexual assault (charge 1) and two charges of rape (charges 3 and 4) committed against his ex-girlfriend, Sarah Jackson.[2] The applicant’s co-accused and step-brother, Thomas Smith,[3] faced similar charges (sexual assault — charge 1 and rape — charges 2 and 5).
[2]A pseudonym.
[3]A pseudonym.
After the conclusion of the Crown case, the trial judge ruled that Mr Smith had no case to answer in respect of the charges made against him. The judge also directed that a verdict of not guilty on charge 1 be entered into the record in respect of the applicant.
The applicant’s trial in respect of charges 3 and 4 continued. On 9 August 2022, he was convicted in relation to both charges.
The applicant seeks leave to appeal against conviction on five grounds. They are formulated as follows:
1.The verdicts are unreasonable or cannot be supported having regard to the evidence.
2.A substantial miscarriage of justice has been occasioned by reason of the jury not being adequately directed in relation to prohibited forms of reasoning regarding the applicant’s alleged post-offence conduct. In particular:
(a)The jury was wrongly directed that they could take into account the applicant’s flight in assessing his credibility, in that that conduct could not possibly affect the applicant’s credit absent a conclusion that the applicant had fled due to a guilty conscience; and/or
(b)Despite the learned prosecutor’s suggestion in cross-examining the applicant that he had waited for the complainant for a long period…

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 Dwyer (a pseudonym) v The King

Details

AGLC: Dwyer (a pseudonym) v The King [2023] VSCA 85
Case: [2023] VSCA 85
Decision Date: 19 April 2023

CaseChat Overview and Summary

The appellant, Dwyer, sought an appeal against his conviction for rape, arguing that the verdict was unreasonable and could not be supported by the evidence presented. The case was heard in the High Court of Australia. The appellant contended that the complainant was not a reliable witness and that the jury had engaged in impermissible reasoning regarding the complainant's post-offence conduct. Notably, the Crown had not relied on the complainant's intoxication as a factor negating consent, and there was no notice of incriminating conduct that relied on this aspect. The appellant also claimed that the defence counsel had misunderstood the Crown's case concerning intoxication, which led to a series of defects in the trial process.

The legal issues before the court were whether the verdict was unreasonable or unsupported by the evidence, the reliability of the complainant's testimony, and whether the jury's reasoning about post-offence conduct constituted a miscarriage of justice. The court had to determine if the aggregation of these issues amounted to a substantial miscarriage of justice. The court examined the directions given to the jury under the Jury Directions Act 2015 and applied the principles set out in Baini v The Queen.

The court found that the aggregation of defects in the trial process did indeed amount to a substantial miscarriage of justice. The jury had engaged in impermissible reasoning by considering the complainant's post-offence conduct as indicative of her lack of consent. Additionally, the defence counsel's misunderstanding of the Crown's case regarding intoxication further compounded the issues. The court held that these factors, taken together, led to an unjust outcome. Consequently, the appeal was allowed, and the conviction was quashed.

The court did not detail specific orders beyond allowing the appeal and quashing the conviction. The case was remitted for a new trial, ensuring that the jury would receive proper directions and that the issues identified would be appropriately managed in any future proceedings.

Orders