G B D v The Queen - [2011] VSCA 437

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0979

GBD
	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	ASHLEY, HARPER JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2011
DATE OF JUDGMENT:	16 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 437
JUDGMENT APPEALED FROM:	The Queen v [GBD] (Unreported, County Court of Victoria, Judge Wilmoth, 18 December 2009)

---

CRIMINAL LAW – Conviction – Two counts of rape – Complainants aged 13 and 14 years of age – Complainants provided with alcohol and injected with drugs – Consent – Whether trial judge erred by directing the jury that the offender could be convicted of rape even if he believed that the complainant was consenting – Worsnop v The Queen [2010] VSCA 188 discussed – Appeal against conviction allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Glynn	Galbally & O’Bryan Lawyers
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agree with Harper JA, whose reasons I have had the advantage of reading in draft, that the appellant’s conviction on count 19 must be set aside. Consent and belief in consent were in issue, and a Worsnop[1] misdirection was unfortunately, but blamelessly, given.
[1](2010) 28 VR 187.

Concerning count 24, I agree with his Honour that, in the way which he describes, consent and belief in consent became live issues, that there was a Worsnop misdirection, and that the conviction must be set aside.

I further agree with his Honour that it would be inappropriate to enter a conviction on the alternative count 25. On the evidence adduced, a properly instructed jury might have returned a guilty verdict on count 24.

It is implicit in what I have thus far said, but I should make clear my conclusion, that the appellant’s convictions on counts 19 and 24 could not be saved by recourse to the proviso to s 568(1) of the Crimes Act 1958. Whilst penetration was not in issue in respect of count 19, and whilst it is clear, respecting count 24, that the jury accepted CKL’s evidence that penetration occurred, the misdirection concerning belief in consent was in each instance potentially very significant. Having considered all the pertinent evidence, I am not satisfied the appellant was proved beyond reasonable doubt to be guilty on either count.

HARPER JA:

Following a trial in the County Court which was held over some weeks in September 2009 and the following month, the appellant (‘GBD’) – one of two accused then standing trial on a 32 count presentment – was convicted of two counts of rape (counts 19 and 24). He was acquitted on five other charges, one of which (count 25) was a statutory alternative to count 24. The maximum penalty for rape is

25 years’ imprisonment.

The appellant was, on 18 December 2009, sentenced to six years’ imprisonment on each count. The judge ordered that 12 months of the sentence on count…

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 G B D v The Queen

Details

AGLC: G B D v The Queen [2011] VSCA 437
Case: [2011] VSCA 437
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the matter of G B D versus The Queen, the appellant faced conviction on two counts of rape involving complainants aged 13 and 14 years. The core dispute centred around the issue of consent, particularly whether the offender could be found guilty of rape if he genuinely believed the complainants were consenting, despite them being under the influence of alcohol and drugs. The case was heard in the Victorian Court of Appeal.

The legal issues that the court needed to address were whether the trial judge erred in directing the jury that the appellant could be convicted of rape even if he believed that the complainants were consenting, and whether this direction was consistent with the principles established in Worsnop v The Queen. The appellant argued that the jury should have been directed that if there was a reasonable belief in consent, it would negate the mens rea required for rape.

The court found that the trial judge had indeed erred in not adequately addressing the issue of the appellant’s belief in consent. The court held that under the common law principles established in Worsnop, a genuine belief in consent by the offender is a defence to a charge of rape, and this should have been clearly conveyed to the jury. The court's reasoning hinged on the necessity for the prosecution to prove the absence of such a belief beyond reasonable doubt. Consequently, the appeal against the conviction was allowed, and the matter was remitted to the trial court for reconsideration.

The court ordered that the convictions be quashed and a retrial be conducted with proper directions to the jury regarding the defence of belief in consent.

Orders