JUDGES:	PRIEST, KYROU and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2016
DATE OF JUDGMENT:	15 June 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 138
JUDGMENT APPEALED FROM:	R v Van Der Zant (Unreported, County Court of Victoria, Judge Murphy, 29 May 2015 (Conviction))

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CRIMINAL LAW — Appeal — Conviction — Rape — Jury deadlocked — Judge’s redirection introduced concepts of powers of self-control of an ordinary man and the jury’s application of community values — Directions fundamentally misleading — Directions occasioned a substantial miscarriage of justice — Appeal allowed — New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Lethbridges
For the Crown	Ms F Dalziel	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
MCLEISH JA:

Introduction

A jury empanelled in the County Court found the appellant guilty of rape[1] on 29 May 2015.
[1]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.

On 23 February 2016, Osborn JA granted the appellant leave to appeal against conviction on the following ground:

The learned trial judge erred in his directions to the jury which were given to the jury at 5:23 pm on Wednesday 27 May, 2015 in response to a note from the jury which stated that the jury was ‘still a hung jury with no foreseeable resolution’, with the consequence that there has been a substantial miscarriage of justice.

For the reasons that follow, the appeal must be allowed.

The issues and the evidence

There were two principal issues in the trial: first, whether the complainant had consented to sexual penetration; and, secondly, if she had not consented, whether the appellant was aware that she was not consenting or might not be consenting; or had not given any thought to whether she was not or might not have been consenting.[2] In brief summary, the evidence bearing on those issues was as follows.
[2]So far as relevant, s 38(2) of the Crimes Act 1958 provided:
(2) A person commits rape if—
(a) he or she intentionally sexually penetrates another person without that person’s consent —
(i) while being aware that the person is not consenting or might not be consenting; or
(ii) while not giving any thought to whether the person is not consenting or might not be consenting; …

‘TH’, the complainant, worked as a receptionist in the hotel industry in Melbourne. She was aged 20 years. The appellant, aged 42 years, was employed in a Sydney-based marketing role by a large online payment processing company. He was in Melbourne on a work trip.

During the evening of 10 July 2013, TH attended a work function at a large hotel in the Docklands area. There were a number of fellow staff members at the function. In the course of the evening, TH consumed a considerable quantity of alcohol.

As the…

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 Mark Van Der Zant v The Queen

Details

AGLC: Mark Van Der Zant v The Queen [2016] VSCA 138
Case: [2016] VSCA 138
Decision Date: 15 June 2016

CaseChat Overview and Summary

In Mark Van Der Zant v The Queen, the appellant faced a charge of rape and was convicted following a trial in the Supreme Court of Western Australia. The jury initially failed to reach a unanimous verdict, prompting the trial judge to provide a direction to the jury, which included the concepts of the powers of self-control of an ordinary man and the jury's application of community values. The appellant was subsequently convicted following this redirection. The High Court of Australia was tasked with examining the legality of the trial judge's direction and its impact on the trial's outcome.

The primary legal issue before the court was whether the trial judge's redirection to the jury was a correct application of the law and whether it led to a miscarriage of justice. The court needed to determine if the judge's direction was fundamentally misleading and if it introduced concepts that were not supported by the evidence or the applicable law. The appellant argued that the direction introduced erroneous principles that were not aligned with the legal standards for evaluating the evidence in a sexual assault case.

The High Court found that the trial judge's redirection was fundamentally misleading and introduced concepts that were not supported by the evidence or the applicable law. The court concluded that the direction regarding the powers of self-control of an ordinary man and the jury's application of community values was not an accurate reflection of the legal standards for evaluating evidence in a sexual assault case. The court held that these directions occasioned a substantial miscarriage of justice, leading to an unsafe and unsatisfactory verdict. Consequently, the appeal was allowed, and a new trial was ordered.

The final orders of the court included the quashing of the appellant's conviction and the ordering of a new trial. The court emphasised the importance of ensuring that jury directions are accurate and do not introduce concepts that are not supported by the evidence or the applicable law. This decision underscores the necessity for trial judges to provide clear and legally sound directions to juries to maintain the integrity of the criminal justice system.

Orders