Jonathon Hubbard v The Queen - [2020] VSCA 303

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2020 0062

JONATHON HUBBARD	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	T FORREST and WEINBERG JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2020
DATE OF JUDGMENT:	26 November 2020
MEDIUM NEUTRAL CITATION	[2020] VSCA 303
JUDGMENT APPEALED FROM:	DPP v Hubbard (Unreported, County Court of Victoria, Judge Quin, 5 May 2020)

---

CRIMINAL LAW – Appeal – Conviction – Rape – Whether verdict of guilt reasonably open on the evidence as a whole – Accused’s reasonable belief in consent when complainant asleep at time of sexual penetration – Whether accused knew or believed complainant was asleep at time of penetration, Pell v The Queen (2020) 94 ALJR 394 applied, Crimes Act 1958 ss 36(2)(d), 36A, 38, Criminal Procedure Act 2009 s 276(1)(a), Jury Directions Act 2015 s 47 – Leave to appeal granted – Appeal allowed.

EVIDENCE – Jury directions – Jury directions as to jury’s use of evidence of an admission – Whether judge should have given direction under s 136 to limit use of evidence of an admission – Statutory definition of ‘admission’ – Whether phone call evidence capable of containing an admission – Inadmissible propensity reasoning – Whether ‘boys will always be boys’ invites jury to engage in propensity reasoning – Whether judge should have issued direction not to engage in propensity reasoning – Judge’s direction as to jury’s use of prosecution argument; Crimes Act 1958 s 36A, Evidence Act 2008 s 136.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Morrissey SC	Brand Partners
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA:

Following a jury trial in the County Court at Melbourne the applicant was convicted of a single charge of rape. He was sentenced to 4 years’ imprisonment with a minimum non-parole period of 18 months.

By notice of application for leave to appeal against conviction the applicant proposes three grounds of appeal. They are:

Ground 1 (the ‘unsafe’ ground): The verdict of the jury is unreasonable or cannot be supported by the evidence.
Ground 2 (the ‘boys will always be boys’ ground): Her Honour erred by failing to direct the jury
(a) to disregard the submission; and
(b)not to reason that it is natural for men to proceed without consent, or that men have a propensity to do so.
Ground 3:(the ‘pretext call’ ground): Her Honour erred
(a)by failing to limit the use to which the ‘pretext conversation’ could be put; [and]
(b)by failing to direct the jury in how to use the ‘pretext’ call.

Overview

The complainant, AC, and her then partner, PJ, went to the Electric Ladyland nightclub in Chapel Street, Prahran at about midnight on Friday 26 May 2017. Both had consumed some alcohol earlier in the evening. The applicant then worked as a manager for a business group that operated various nightclubs in Prahran, including Electric Ladyland. He had known the complainant socially in…

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 Jonathon Hubbard v The Queen

Details

AGLC: Jonathon Hubbard v The Queen [2020] VSCA 303
Case: [2020] VSCA 303
Decision Date: 26 November 2020

CaseChat Overview and Summary

In the case of Jonathon Hubbard v The Queen, the appellant, Hubbard, sought to appeal against his conviction for rape. The dispute centred around whether the jury's verdict of guilt was reasonably open on the evidence presented. A critical issue was whether Hubbard had a reasonable belief in the complainant's consent when she was asleep at the time of the sexual penetration. The matter was brought before the court to determine whether the accused knew or believed the complainant was asleep at the time of penetration, with reference to Pell v The Queen and relevant sections of the Crimes Act 1958 and Criminal Procedure Act 2009. The court was also required to consider whether the judge should have given specific directions to the jury regarding the use of evidence of an admission and to prevent them from engaging in propensity reasoning.

The court examined whether the judge should have provided a direction under section 136 of the Evidence Act 2008 to limit the use of evidence of an admission, specifically a phone call that could be construed as an admission. Additionally, the court considered whether the statutory definition of 'admission' applied to the phone call evidence and if the 'boys will always be boys' argument invited the jury to engage in propensity reasoning. The court also assessed the adequacy of the judge's directions concerning the jury's use of prosecution arguments, referencing sections 36A of the Crimes Act 1958 and 136 of the Evidence Act 2008. The court concluded that the appeal should be allowed and that the verdict was not reasonably open on the evidence as a whole.

The reasoning of the court was grounded in the interpretation of the statutory provisions and the applicable legal principles. The court found that the jury's verdict was not reasonably open on the evidence presented, particularly regarding the accused's belief in consent. The court determined that the judge should have provided a direction to limit the use of the phone call evidence as an admission and to prevent the jury from engaging in propensity reasoning. The court found the judge's directions to be inadequate, leading to the conclusion that the appeal should be allowed. The verdict was quashed, and a new trial was ordered.

Orders