Lack v The Queen

[2011] VSCA 246

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0078 

GAVAN LACK
	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	ASHLEY and HANSEN JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2011
DATE OF JUDGMENT:	23 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 246
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Parsons, 12 March 2010)

---

CRIMINAL LAW - Appeal against conviction - Direction as to complaint evidence - Whether direction undermined defence case - Whether direction precluded an interpretation consistent with innocence - Application for leave refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Melasecca Kelly & Zayler
For the Crown	Mr T Gyorffy, SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. I have had the opportunity of reading in draft the reasons of Whelan AJA.  I agree with his Honour, for the reasons that he gives, that grounds 2 and 3 should be rejected.

1. I turn to ground 1.

The evidence

1. The relevant evidence with respect to statements made by the complainant concerning the alleged rape was as follows:

1.Evidence of the complainant in examination in chief that -

·she had not given details of what had happened to her parents on the night of the incident;

·she told a friend, Miss H, ‘pretty much … what had happened straight away’;[1]  and, about two days later, she told Miss H ‘everything,’ that the applicant had ‘fingered’ her.

[1]It was on the day following the incident.  The complainant had travelled to Noosa with her friend and friend’s family.

2.Evidence of the complainant in cross-examination that –

·about three weeks after the incident she told her father ‘what had happened’, ‘exactly what occurred’;

·on the night of the incident, she had not told her parents that the applicant had put his fingers in her vagina.

3.        Evidence of Miss H that –

·shortly after she and the complainant arrived at Noosa on the day after the alleged incident, the complainant told her that the applicant had ‘sexually assaulted’ her;

·over the next couple of days, she was told ‘small, little details’.  The details included the statement that the applicant had ‘put his fingers’ into the complainant.

·the applicant had ‘pulled her pants down and started fingering her and stuff’ (this was evidence given in cross-examination)

4.Evidence of the complainant’s mother, in examination in chief, that -

·when the complainant returned home on the night of the alleged rape, she asked the complainant if something was wrong, and the complainant ‘just nodded;’

·the next day, the complainant gave no details of what had happened, except that, in response to the question ‘did he touch you with his penis’, the complainant replied ‘no’;

·she had never been given any detail by the complainant of what had happened.

5.Evidence of the complainant’s mother, in cross-examination, that on the night of the incident the complainant said that the applicant ‘touched [her] down there … during the massage’.

6.Evidence of the complainant’s father…