L A v The Queen - [2011] VSCA 293

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0091

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…

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 L A v The Queen

Details

AGLC: L A v The Queen [2011] VSCA 293
Case: [2011] VSCA 293
Decision Date: 28 September 2011

CaseChat Overview and Summary

The defendant, L A, was convicted of rape and challenged the validity of the jury's verdict. The case was heard in the Court of Appeal, where the appellant contested the correctness of the jury's verdict on multiple grounds, including an apprehension of bias on the part of a juror and an erroneous instruction given to the jury regarding the meaning of consent in the context of rape charges. The central issue for the court to decide was whether the jury's verdict should be quashed due to these alleged errors.

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.

Orders