Gordon v R - [2010] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0989

ASHTON GORDON
	v
THE QUEEN

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JUDGES:	WARREN CJ, BUCHANAN and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2010
DATE OF JUDGMENT:	23 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 207
JUDGMENT APPEALED FROM:	R v Gordon (Unreported, County Court of Victoria, Geelong, Judge Sexton, 18 December 2009)

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CRIMINAL LAW – Rape – Belief in consent precludes awareness that the complainant may not be consenting – Consent may be conveyed by words or conduct – Kilby direction not required – Direction as to use to be made of evidence of good character of the accused – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Croucher	Michael Brugman
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

The Court invites Buchanan JA to deliver the first judgment.

BUCHANAN JA:

After a trial in the County Court, the applicant was found guilty on a charge of rape. A plea was conducted and the applicant was sentenced to be imprisoned for a term of four years and nine months with a minimum term of two years and nine months before the applicant was to be eligible for parole.

The applicant seeks leave to appeal against the conviction and the sentence.

The principal Crown witness at the trial was the complainant. At the time of the alleged offence she was 17 years’ old. The applicant was 18 years’ old. The complainant and the applicant had known each other at high school.

On 26 January 2008 they attended a party in a shed at a farm near Cobden. The complainant took a swag to sleep in. At about four o’clock the next morning the complainant was with the applicant and three other youths. The complainant told the boys that she was going to bed, walked to her swag and got in. The complainant believed that the applicant was going to sleep with his girlfriend in a campervan nearby.

Five minutes later the applicant got into the swag. The complainant told him to get out. The applicant ignored her protests and got on top of her and started to pull her pants down. He took his own pants off and had intercourse with the complainant for some five to ten minutes. The complainant made no attempt to attract the attention of persons nearby and did not complain until she went to the police towards the end of March 2008.

The applicant gave evidence that when the complainant got into her swag, she was pulling his hand, which the applicant interpreted as an invitation. The applicant and the complainant hugged and kissed. The complainant took her top off and undid her bra, whilst the applicant helped to pull her pants down. The applicant said that the intercourse was consensual.

The grounds of the application for leave to appeal against conviction are as follows:

Ground 1: The learned trial judge erred…

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 Gordon v R

Details

AGLC: Ashton Gordon v The Queen [2010] VSCA 207
Case: [2010] VSCA 207
Decision Date: 23 August 2010

CaseChat Overview and Summary

The case of Gordon v R involved an appeal by the respondent against a conviction for rape. The appeal centred on the legal principles surrounding consent and the accused's awareness of the complainant's state of mind. The High Court of Australia was tasked with determining the correctness of the trial judge's directions to the jury regarding the concept of consent and whether the trial judge had erred in his instructions. The court also needed to decide whether the trial judge should have provided a direction in line with the Kilby decision and whether the trial judge had correctly directed the jury regarding the use to be made of evidence of the accused's good character.

The primary legal issue the court addressed was whether the trial judge had correctly instructed the jury on the concept of consent. The court held that the trial judge had adequately explained that the accused's belief in consent did not preclude an awareness that the complainant may not have been consenting. The court found that the trial judge's directions correctly informed the jury that consent could be conveyed by words or conduct and that the accused's belief in consent was not a defence if the complainant had not consented. The court further concluded that the trial judge had not erred in not providing a direction in line with the Kilby decision, as the circumstances of this case did not require such a direction. The court also determined that the trial judge had correctly directed the jury regarding the use to be made of evidence of the accused's good character, emphasising that it was for the jury to decide the weight to be given to such evidence.

As a result of the appeal, the High Court quashed the conviction and ordered a re-trial. The court found that the trial judge's directions to the jury had been correct, and the conviction could not be sustained due to the trial judge's error in not providing a direction in line with the Kilby decision. The court held that the error was not merely formal or technical but was of such a nature that it affected the safety of the conviction. Therefore, the conviction was quashed, and a re-trial was ordered to ensure that the jury received the correct legal directions.

Orders