Gaunt v The King

Case [2024] VSCA 311

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0179
NIGEL GAUNT Applicant
v
THE KING Respondent

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JUDGES: BEACH, KENNEDY and ORR JJA
WHERE HELD: Melbourne
DATE OF HEARING: 31 October 2024
DATE OF JUDGMENT: 12 December 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 311
JUDGMENT APPEALED FROM: DPP v Gaunt [2023] VCC 850 (Judge Chambers)

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CRIMINAL LAW – Application for extension of time to seek leave to appeal against conviction – Rape – Where judge gave a direction about applicant’s admission to ‘inappropriate’ conduct – Where no further direction sought by counsel – Whether judge should have given a further direction on basis that evidence constituted ‘other misconduct evidence’ – No substantial and compelling reasons to give any further direction – Whether judge properly directed jury that they could take the applicant’s intoxicated state into account – Judge’s direction adequately referred to intoxication and related it to whether applicant had belief in consent – Application for extension of time refused.

Jury Directions Act 2015 ss 12, 15, 16, 26, 27 and 29; Crimes Act 1958 ss 37 and 37AA, as at 17 December 2008.

Madafferi v The Queen [2017] VSCA 302; Dunn (a pseudonym) v The Queen [2017] VSCA 371; O’Leary v The King (1946) 73 CLR 566; R v Adam (1999) 106 A Crim R 510, applied; Quinn (a pseudonym) v The Queen (2018) 272 A Crim R 146; Khan v The Queen [2011] VSCA 286, distinguished.

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Counsel
Applicant: Mr DA Dann KC with Mr PJ Smallwood
Respondent: Mr RL Gibson KC
Solicitors
Applicant: Galbally Parker Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
ORR JA:

  1. In January 2009, the applicant met up with his partner, Ms Tori Jarrett,[1] as well her friend, Ms Marie Sparks,[2] at a hotel in the Albert Park area. After spending some time at the hotel, the three went to the applicant’s home, nearby. Ms Sparks alleges that the applicant then raped her in a spare room of the applicant’s home at a time when Ms Jarrett was also present in the house.

    [1]A pseudonym.

    [2]A pseudonym.

  2. Although Ms Sparks made complaint to some of her friends shortly after the alleged rape, she did not report the matter to police until March 2019. She then conducted a recorded pretext call with the applicant on 3 April 2019.

  3. The applicant made a ‘no comment’ record of interview in September 2019. He was subsequently charged with one count of rape in March 2020, and underwent a trial in the County Court in April 2023. Both Ms Sparks and Ms Jarrett gave evidence at the trial, and the pretext call was admitted into evidence without objection.

  4. On 28 April 2023, the applicant was convicted of rape by jury verdict. He was subsequently sentenced on 26 May 2023 to 5 years’ imprisonment, with a non-parole period of 3 years’ imprisonment.

  5. The applicant now seeks an extension of time to seek leave to appeal the conviction.[3]…

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AGLC
Gaunt v The King [2024] VSCA 311
Case
[2024] VSCA 311
Decision Date

CaseChat Overview and Summary

In Gaunt v The King, the applicant, Gaunt, sought an extension of time to appeal against his conviction for rape. The case involved complex legal issues surrounding jury directions given by the trial judge. The key issues were whether the judge should have provided further directions about the applicant’s admission to ‘inappropriate’ conduct and whether the judge correctly directed the jury to consider Gaunt’s intoxicated state in relation to his belief in consent. The applicant argued that the trial judge should have independently directed the jury about the ‘other misconduct evidence’ under the Jury Directions Act 2015, despite no request being made by counsel.

The court examined the statutory framework and relevant case law to determine if there were substantial and compelling reasons for the judge to give such a direction without a request. The court noted that under the Jury Directions Act 2015, a judge is not required to give a direction unless there are substantial and compelling reasons to do so. The applicant had to demonstrate that the trial judge’s failure to give such a direction constituted a miscarriage of justice. The court found that there was no evidence of incompetence on the part of counsel and that the existing direction was sufficient. The court also held that the judge properly directed the jury regarding the applicant’s intoxicated state and its relation to his belief in consent.

The application for an extension of time to appeal was refused. The court found that the applicant failed to demonstrate substantial and compelling reasons for the judge to provide additional directions. The existing directions were deemed adequate, and there was no miscarriage of justice that would warrant an extension of time to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Sections 27 and 29 then identify two possible directions which may be requested under s 12 as follows:27Direction on other misconduct evidence adduced by the prosecution(1) Defence counsel may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution.(2)In giving a direction referred to in subsection (1), the trial judge must—(a)identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and(b)if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and(c)direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.(3)In giving a direction referred to in subsection (1), the trial judge need not—(a)explain further what the jury should consider in deciding whether to use the other misconduct evidence; or(b)identify impermissible uses of the other misconduct evidence; or(c)refer to any other matter.29Direction to avoid risk of improper use of other misconduct evidence(1) If other misconduct evidence (other than tendency evidence) is adduced, the prosecution or defence counsel may request under section 12 that the trial judge warn the jury not to use the evidence as tendency evidence.(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as tendency evidence.(2)Analysis As the applicant acknowledged, he carries a ‘heavy burden’ to establish that there were ‘substantial and compelling reasons’ for a judge to give a direction which was not requested, in circumstances where highly competent and experienced senior counsel approved a specific form of direction and later chose not to seek any further or amended form of direction, despite having ample opportunity to do so. In Dunn (a pseudonym) v The Queen, this court stated:The language of s 16 of the JDA 2015 is a good deal more stringent than that of its predecessor. This was, plainly enough, a deliberate choice by the legislature. As Tate JA said in Dunn (a pseudonym) v The Queen:The ‘substantial and compelling reasons’ test was introduced in order to simplify and clarify the circumstances in which a trial judge might give a jury direction, notwithstanding that neither party sought one. The new provision requires that the parties have an opportunity to provide submissions on why a direction should or should not be given thereby ensuring that ‘appropriate weight is given to the forensic decision making of the parties’, and as a safeguard to protect the rights of the accused. It was anticipated that a judge would exercise the power under the new test ‘in very limited circumstances, for example, if counsel is incompetent.’ There is no suggestion of that type here.[11] [11]Dunn (a pseudonym) v The Queen [2017] VSCA 371, [82] (Maxwell P, Beach and McLeish JJA), quoting Dunn (a pseudonym) v The Queen [2017] VSCA 95, [22] (Tate JA) (citations omitted).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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