Legal Research
Cases
Gul v The Queen

Gul v The Queen

Case [2017] VSCA 153 22 June 2017

Conviction

Jury Directions Act 2015

Type to search within this case.

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0174

HUSEYIN GUL	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	ASHLEY and PRIEST JJA, and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2017
DATE OF JUDGMENT:	22 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 153
RULING APPEALED FROM:	DPP v Gul (Unreported, County Court of Victoria, Judge Chettle, 31 May 2016 (Conviction))

---

CRIMINAL LAW — Conviction — Application for leave to appeal — Rape and associated offences — Directed verdicts of acquittal on charges of rape and compelling sexual penetration — Whether judge erred in failing to instruct on use of evidence relating to charges subject of directed acquittal when considering remaining charges — Other misconduct evidence — Failure to give anti-propensity reasoning direction — No substantial and compelling reason to give direction — Jury Directions Act 2015 ss 16, 27 — Whether judge erred in not discharging jury following entries of acquittal — Whether directions on mental element of offences and consent adequate — Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Morrissey SC	Garde-Wilson Lawyers
For the Respondent	Mr C Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
PRIEST JA:

Introduction

Following a trial in the County Court, on 31 May 2016 a jury convicted the applicant of indecent assault[1] (charge 3), rape[2] (charge 4) and making a threat to kill[3] (charge 5). In circumstances that we will later discuss, the judge directed the jury to acquit the applicant of rape (charge 1) and compelling sexual penetration (charge 2).[4]
[1]Crimes Act 1958, s 39.
[2]Crimes Act 1958, s 38.
[3]Crimes Act 1958, s 20.
[4]Crimes Act 1958, s 38A.

On 20 July 2016, the applicant was sentenced to a total effective sentence of five years and nine months’ imprisonment, with a non-parole period of three years.[5]
[5]On charge 3, the sentence was 18 months’ imprisonment; on charge 4, four years and six months’ imprisonment (being the base sentence); and on charge 5, 12 months’ imprisonment. Nine months of the sentence on charge 3, and six months of the sentence on charge 5, was ordered to be served cumulatively upon the sentence on charge 4.

Originally, the applicant sought leave to appeal on two grounds as follows:

1. The Learned Trial Judge erred by failing to instruct the jury concerning the use to which the evidence on charges 1 and 2 could be put.
2. The Learned Trial Judge erred by failing to discharge the jury, pursuant to section 241(2) of the Criminal Procedure Act 2009 (Vic), once the jury returned a verdict of not guilty on charges 1 and 2 by direction.

In the course of the hearing in this Court, counsel sought to amend grounds 1 and 2 (so as to reformulate them as set out below), and to add a new ground, ground 3:

1. The Learned Trial Judge erred by failing to instruct the…

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 Gul v The Queen

Details

AGLC: Gul v The Queen [2017] VSCA 153
Case: [2017] VSCA 153
Decision Date: 22 June 2017

CaseChat Overview and Summary

The appellant sought leave to appeal against his conviction, contending that the trial judge erred in various respects concerning the use of evidence and jury directions. The appellant was convicted of multiple offences including assault, deprivation of liberty, and making a threat to kill, following a directed verdict of acquittal on charges of rape and compelling sexual penetration. The central issue was whether the trial judge erred in failing to instruct the jury on the use of evidence relating to the acquitted charges when considering the remaining charges. Additionally, the appellant argued that the trial judge should have provided an anti-propensity reasoning direction and should have discharged the jury after the entries of acquittal.

The court found that the trial judge did not err in not instructing the jury on the use of evidence relating to the acquitted charges, as there was no substantial and compelling reason to do so. The court noted that the judge had adequately directed the jury on the mental element of the offences and the concept of consent. The court also found that there was no error in the failure to provide an anti-propensity reasoning direction, as the evidence was not of a kind that required such direction. Finally, the court held that there was no basis for discharging the jury following the entries of acquittal, as the remaining charges could still be properly considered.

The court dismissed the application for leave to appeal. The trial judge's handling of the evidence and jury directions was deemed appropriate, and no substantial miscarriage of justice was identified. Consequently, the appellant's conviction stood affirmed.

Orders