Lithgow v The King - [2025] VSCA 64

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0159
S EAPCR 2023 0169

JAMES LITHGOW	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR, KAYE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2025
DATE OF JUDGMENT:	8 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 64
JUDGMENT APPEALED FROM:	[2023] VSC 1656 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of sexual assault (two charges) and rape (two charges) – Applicant acquitted of attempted rape (two charges) and false imprisonment (one charge) – Charges arising from incidents involving same complainant – Prosecution case based substantially on evidence of complainant – Complainant’s evidence not less credible with respect to acquittal charges than charges on which applicant was convicted – Applicant’s account in record of interview not less credible with respect to charges on which he was convicted than on acquittal charges – Whether jury verdicts inconsistent – Convictions on charges 1, 2, 4 and 5 irreconcilable from acquittals on charges 6 and 7 – Application for leave to appeal granted – Appeal allowed – Guilty verdicts set aside.

Crimes Act 1958, ss 38, 40, 321M, referred to.

Liberato v The Queen (1985) 159 CLR 507; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591, considered.

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Counsel
Applicant:		Ms CA Boston SC with Ms F Fox
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Doogue & George Pty Ltd
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KAYE JA
T FORREST JA:

The applicant was charged on indictment with two charges of rape (charges 4 and 5), two charges of attempted rape (charges 6 and 7), two charges of sexual assault (charges 1 and 2), and one charge of false imprisonment (charge 3). The jury, empanelled on his trial, convicted him by majority verdict of the two charges of rape and the two charges of sexual assault. The applicant was acquitted of the one charge of false imprisonment and the two charges of attempted rape.
Following a plea presented on his behalf, the applicant was sentenced to a total effective sentence of 6 years and 6 months’ imprisonment, with a non-parole period of 4 years. That sentence was constituted as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Sexual assault

10 years’ imprisonment

12 months’ imprisonment

3 months

2

Sexual assault

10 years’ imprisonment

18 months’ imprisonment

3 months

4

Rape

25 years’ imprisonment

5 years 6 months’ imprisonment

6 months

5

Rape

25 years’ imprisonment

5 years 6 months’ imprisonment

Base

Total Effective Sentence:

6 years 6 months’ imprisonment

Non-Parole Period:

4 years

Section 6AAA Statement:

Not applicable

Other relevant orders:

Sentenced as a serious sexual offender in respect of charges 4 and 5.

The applicant seeks leave to appeal against conviction on two grounds, namely:
1.The verdicts are unreasonable, in that no reasonable jury who had applied their minds properly to the facts…

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 Lithgow v The King

Details

AGLC: Lithgow v The King [2025] VSCA 64
Case: [2025] VSCA 64
Decision Date: 8 April 2025

CaseChat Overview and Summary

In the case of Lithgow v The King, the applicant appealed against his conviction for sexual assault and rape, while he was acquitted of attempted rape and false imprisonment. The charges stemmed from incidents involving the same complainant. The applicant argued that the jury's verdicts were inconsistent, as his convictions on some charges were irreconcilable with his acquittals on others. The court considered the credibility of the complainant's evidence and the applicant's account during the interview with the police. The appeal raised questions about the consistency of the jury's verdicts and whether they were irreconcilable given the nature of the charges and the evidence presented.

The legal issues before the court involved determining whether the jury's verdicts were consistent and if the applicant's convictions for sexual assault and rape were irreconcilable with his acquittals on charges of attempted rape and false imprisonment. The court had to assess the credibility of the complainant's evidence and the applicant's account in light of the charges and verdicts. The case required the application of legal principles established in previous cases, such as Liberato v The Queen, MacKenzie v The Queen, MFA v The Queen, and R v Kirkman, which dealt with the consistency of jury verdicts in criminal cases.

The court found that the jury's verdicts were inconsistent and irreconcilable. The applicant's convictions for sexual assault and rape were inconsistent with his acquittals on charges of attempted rape and false imprisonment. The court concluded that the jury must have accepted the complainant's evidence in relation to the charges on which the applicant was convicted, but found it incredible in relation to the charges on which he was acquitted. The appeal was allowed, and the guilty verdicts were set aside. The applicant's convictions were quashed, and the case was remitted for a new trial.

No orders were made regarding costs, as the appeal was allowed on the basis of the inconsistency of the jury's verdicts. The case highlighted the importance of ensuring that jury verdicts are consistent and based on credible evidence. It reinforced the principle that a conviction on certain charges cannot stand if it is irreconcilable with an acquittal on other charges arising from the same incidents. The decision underscores the need for careful consideration of the evidence and the consistency of the jury's findings in criminal trials.

Orders