L A v The Queen
[2011] VSCA 293
•28 September 2011
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 gave evidence at his trial that he had consensual sexual intercourse with the complainant in the back seat of the car.
The applicant seeks leave to appeal against conviction. There are two grounds of the application. They are:
1.A miscarriage of justice was occasioned by one of the juror’s having previously known the applicant in circumstances that she would not bring an impartial mind to the trial of the applicant.
2.The trial judge erred in directing the jury that the requisite mental state for the crime of rape could be established even if the applicant had a belief that the complainant was consenting.
Between 1996 and 2000 the applicant was employed as a cleaner at Cliveden Hill Private Hospital. In an affidavit, the applicant deposed that when the jury retired to consider their verdict, he heard one of the jurors speak and recognised her voice as that of the supervising nurse at the hospital. The applicant said that during the period he worked at the hospital he was criticised on numerous occasions by the nurse. She complained to the manager of the hospital about the applicant playing music and about his work. He said that she excluded him from a Christmas party on the basis that cleaning staff had not been invited to attend. The applicant met the manager of the hospital approximately 20 times to discuss the nurse’s complaints. In a telephone conversation in 2006 the applicant requested a written reference from the nurse, who refused to give it and said that she would only provide a verbal reference. The applicant last saw the nurse in 2000.
The barrister who appeared for the applicant at the trial swore in an affidavit that the applicant exercised six peremptory challenges to jurors, but did not challenge the person he identified as the supervising nurse. He deposed that at a conference towards the end of the trial the applicant mentioned to the barrister that he might know a juror whom he thought was a nurse. The barrister deposed:
As counsel I took no action in relation to this matter as I did not believe that the information could be right given the very limited details relayed to me at the time, my mind was on other matters relating to the trial and no mention was made to me of any issue with a juror at the time the jury was selected.
The barrister said that nearly a month after the jury verdict he attended a conference with the applicant and his solicitor. The applicant told his solicitor that he believed he recognised a juror who had worked with him at Cliveden Hill Private Hospital and who had confrontations with the applicant about his cleaning duties.
The test for ostensible bias on the part of a juror was stated by Callaway JA in R v ALH in these terms:
The test for ostensible bias is well settled. Applied to a juror, it is whether, in all the circumstances, a fair minded lay observer with knowledge of the material facts might entertain a reasonable apprehension that the juror might not bring an impartial mind to the resolution of the matters before him or her.[1]
[1](2003) 6 VR 276, [8]. See also Webb v R (1994) 181 CLR 41, 53 (Mason CJ and McHugh J); Scetrine v R [2010] VSCA 194, [14].
The principal issue in the trial was the applicant’s belief in the consent of the complainant. The credit of the applicant presumably played an important part in the resolution of that issue. If there was real antipathy between the juror and the applicant when the trial was held, or at least a reasonable possibility of antipathy, that may well have given rise to a reasonable apprehension of bias. In my opinion, however, the evidence fell short of establishing a basis for such an apprehension.
At the date of the trial, the applicant and the juror had not seen each other for almost a decade. The applicant did not immediately recognise the juror. The juror was not said to have given any sign of recognition of the applicant. No particulars have been given of the complaints said to have been made by the juror of the applicant’s work and there is no evidence as to how the complaints were resolved. The exclusion of the applicant from the Christmas party apparently was not based on any ill feeling towards the applicant and the refusal of a written reference is, in my view, equivocal. I do not consider that a fair minded bystander who knew the facts might entertain a reasonable apprehension that the juror might not have discharged her task impartially.
Counsel for the applicant also contended that the evidence established actual bias on the part of the juror. In my opinion, the considerations which are relevant to the question of apprehended bias, which I have identified, also rule out actual bias. Further, the allegation of actual bias appears to assume that the juror would not obey the instructions given by the trial judge to the jury to act impartially.[2]
[2]See R v Vjestica (2008) 182 A Crim R 350; R v Halliday (2009) 23 VR 419.
The second ground of the application for leave to appeal against conviction is based upon the following passage in the directions given by the trial judge to the jury:
Evidence of or about the accused’s belief in consent must be taken into account by you in determining whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not or might not be consenting. Even if you find that the accused did have such a belief, you will need to decide whether the prosecution has proved this fourth element. You might find that the accused believed the complainant was consenting, but still be satisfied beyond reasonable doubt that the accused was aware of the possibility that the complainant was not consenting. In that case, the fourth element would be met.
It was common ground between counsel at the hearing of the appeal that the trial judge erred because:
If the jury concluded that the applicant believed that [the complainant] was consenting to … penetration, the Crown necessarily failed to establish the fourth element [of rape] to the criminal standard. It mattered not that the belief was, let it be assumed, unreasonable.[3]
[3]R v Worsnop [2010] VSCA 188, [22] (Ashley JA).
Counsel for the Crown, however, contended that the verdict of guilty was saved by the proviso to s 568(1) of the Crimes Act 1958. It was submitted that the applicant’s version of the events was implausible. The complainant had vomited shortly prior to the sexual penetration and the applicant had no means of knowing how long he and the complainant would be left alone by the other passengers.
Upon a consideration of the whole record of the trial, I am not satisfied that the applicant was proved beyond reasonable doubt to have been guilty. Even accepting the criticisms of the applicant’s account advanced by counsel for the
respondent, I consider that the natural limitations of a paper trial precludes satisfaction of guilt to the requisite standard. The applicant’s belief in consent was a central issue in the trial. In his record of interview the applicant told the police that he believed the complainant was consenting to intercourse. In my opinion, it is by no means clear that the misdirection could not have been operative in the verdict of guilty.[4]
[4]Cf R v Worsnop, above, [42]. See also Gordon v R [2010] VSCA 207; Wignall v R [2010] VSCA 237; Roberts v R [2011] VSCA 162; Walker & Kormez v R [2011] VSCA 160; Neal v R [2011] VSCA 172.
For the foregoing reasons I would grant the application for leave to appeal against conviction, treat the appeal as instituted instanter and allowed, set aside the conviction and the sentence passed thereon and order that the appellant be re-tried.
MANDIE JA:
I agree with Buchanan JA.
WHELAN AJA:
In relation to the first ground of appeal, I agree with Buchanan JA.
As to the second ground of appeal, it was common ground that the trial judge erred by giving the direction which she did in relation to asserted belief. There can be no criticism of the trial judge for giving the direction she gave; it was the standard and accepted direction at the time. That standard direction was held to be erroneous in R v Worsnop[5], a decision which has, in the relevant respect, since been applied on numerous occasions, usually with the Crown conceding error.[6] In those circumstances,[7] I accept the Crown concession here. I agree with Buchanan JA that
[5][2010] VSCA 188.
[6]Gordonv The Queen [2010] VSCA 207, [9]-[10]; Wignall v The Queen [2010] VSCA 327, [4]-[7]; Roberts v The Queen [2011] VSCA 162, [17]-[20]; Walker v The Queen; Kormez v The Queen [2011] VSCA 160, [4]-[5]; Neal v The Queen [2011] VSCA 172, [87]-[91]; Duwah v The Queen [2011] VSCA 262, [39].
[7]See: Nguyen v Nguyen (1990) 169 CLR 245, 269.
the proviso does not apply for the reasons he has given.
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