SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0091 |
| LA |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN and MANDIE JJA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 September 2011 | |
DATE OF JUDGMENT/ORDER: | 28 September 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 293 | |
JUDGMENT APPEALED FROM: | (Unreported County Court of Victoria, Judge Thornton, date of sentence 30 March 2010) | |
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CRIMINAL LAW – Rape – Apprehension of bias on part of juror – No reasonable possibility of antipathy between juror and accused – Erroneous jury instruction that belief in consent is not inconsistent with awareness of the possibility of no consent – Proviso to s 561(1) of the Crimes Act 1958 not applicable.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Lindner | Macgregor and Assoc (St Kilda) |
| For the Respondent | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
After a trial in October 2009 in the County Court, the applicant was found guilty on one count of rape.
The principal Crown witness was the complainant. She said that in the early hours of a Saturday she and a girlfriend, Claudia Gomez-Rivas, drove to a night club and consumed alcohol after already having consumed alcohol at an hotel earlier in the evening.
The complainant met the applicant and danced with him. At about 2.38 am the group left the night club and walked to a hotel a short distance away. Surveillance camera footage and evidence from security staff at the hotel depicted the complainant as very drunk and having difficulty walking. She vomited in the toilets at the hotel.
The applicant drove the complainant and her friend to Richmond to the home of David Archie, the father of the complainant’s friend’s child.
When they arrived at the house in Richmond, Gomez-Rivas went into the house. The complainant had by that stage vomited in the car. The applicant got out of the driver’s seat and opened the rear door and got into the back of the car with the complainant. Despite the complainant saying repeatedly, ‘No’, the applicant lifted up her dress and legs and penetrated her vagina with his penis while kneeling in the car. The applicant ejaculated inside the complainant’s vagina and then returned to the driver’s seat of the car.
The complainant opened the rear door of the car and fell on to the pavement, injuring her knee and chin. Her sounds of distress alerted a neighbour who came out of her house and observed the complainant lying on the pavement moaning, wailing occasionally but not moving. Gomez-Rivas and Archie found the complainant lying on the ground crying, and complaining of rape, with vomit in her hair and her clothing in disarray. A DNA sample was taken by a vaginal swab of the complainant. It matched the DNA of the applicant.
In an interview with the police, the applicant said that he tried to put his penis in the complainant’s vagina and he believed that she was consenting.
The applicant…
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- L A v The Queen [2011] VSCA 293
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- [2011] VSCA 293
- Decision Date
CaseChat Overview and Summary
The court examined the appellant's claims of juror bias and found that there was no reasonable possibility of antipathy between the juror and the appellant. It was held that the juror's previous involvement in a similar case did not create a bias that would undermine the fairness of the trial. Additionally, the court considered the erroneous instruction given to the jury that belief in consent was not inconsistent with awareness of the possibility of no consent. The court found that this error did not affect the verdict because the jury had been adequately instructed on the elements of the offence of rape, including the necessity of proving the absence of consent. The court concluded that the proviso to section 561(1) of the Crimes Act 1958 did not apply in this case, as the errors did not materially affect the safety of the verdict.
Given the court's findings, the appeal was dismissed, and the conviction was upheld. The court did not find any basis to interfere with the jury's verdict, and therefore, the appellant's conviction for rape remained valid. The court's decision was grounded in a thorough analysis of the evidence and the applicable legal principles, and it underscored the importance of ensuring that jury instructions are accurate and that any potential bias is properly addressed in criminal proceedings.
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