Neeraj WAHI v The Queen - [2015] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0122

NEERAJ WAHI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG & OSBORN JJA
WHERE HELD:	GEELONG
DATE OF HEARING:	1 June 2015
DATE OF JUDGMENT:	2 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 132
JUDGMENT APPEALED FROM:	DPP v Wahi (Unreported, County Court of Victoria, Judge Chettle, 31 March 2014 (date of conviction), 10 June 2014 (date of sentence))

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CRIMINAL LAW – Conviction – Appeal – Adequacy of Charge – Good character direction – Where conventional ‘balancing direction’ that persons of good character can commit crimes given – Where judge then made comment that ‘even Jack the Ripper had no prior convictions at some stage’ – Where application made that the jury be discharged or alternatively that they be redirected – Where the judge refused applications – No real risk that jury would undervalue good character direction – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Edney	Doogue O’Brien George
For the Respondent	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA:

For the reasons given by Osborn JA I agree that the appeal should be dismissed.

WEINBERG JA:

I agree, for the reasons given by Osborn JA, that this appeal should be dismissed.

OSBORN JA:

On 31 March 2014, following a five day trial by jury in the County Court, the appellant was convicted of two charges of rape, one charge of attempted rape and one charge of indecent assault.

The offending arose out of a sequential series of assaults which were alleged to have occurred on the night of 9 December 2012, when the complainant JN was sleeping at the home of a friend.

On 10 November 2014, Priest JA granted leave to appeal against conviction on two grounds. The first relates to the terms in which the trial judge gave a good character direction. The second alleges that a miscarriage of justice occurred as a result of evidence left to the jury relevant to consciousness of guilt.

The second ground was abandoned on the hearing of the appeal. Before turning to the remaining ground of appeal, it is necessary to outline the evidence as to the offending conduct and say something about the way in which the matter now agitated arose and was dealt with at trial.

The offending conduct

The Crown case was that on 9 December 2012, the complainant, JN, was house-sitting for her sister and brother-in-law in a house in Leopold when the conduct alleged occurred. The appellant had met JN briefly on one prior occasion through their mutual friend, AB. On the night of the incident AB was visiting the Leopold house with JN when the appellant telephoned AB and arrangements were made for him to visit the Leopold house.

Once the appellant arrived, the three went to buy drinks and food. They then went back to the house and began drinking and dancing. Both JN and AB gave evidence that the appellant…

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.

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Details

AGLC: Neeraj Wahi v The Queen [2015] VSCA 132
Case: [2015] VSCA 132
Decision Date: 2 June 2015

CaseChat Overview and Summary

The appellant was convicted by a jury of two counts of rape and one count of aggravated sexual assault. He appealed to the High Court, contending that the trial judge gave an inadequate direction to the jury concerning the relevance of his good character. The appellant submitted that the trial judge’s comments during the summing up stage of the trial were so egregious as to warrant a discharge of the jury or a direction to recommence deliberations. The appellant further contended that his conviction should be quashed on the basis that there was a real risk that the jury would undervalue the appellant’s good character.

The legal issues before the court were whether the trial judge gave an inadequate direction to the jury concerning the relevance of the appellant’s good character and whether that inadequacy was so egregious as to warrant a discharge of the jury or a direction to recommence deliberations. The court found that the trial judge did not give an inadequate direction to the jury concerning the relevance of the appellant’s good character. The judge had given a conventional ‘balancing direction’ and, while the judge had made a comment about Jack the Ripper, the court found that this was not sufficient to vitiate the jury’s verdict. The court found that there was no real risk that the jury would undervalue the appellant’s good character.

The court held that the appeal should be dismissed. The trial judge’s summing up was not so deficient as to vitiate the jury’s verdict and there was no real risk that the jury would undervalue the appellant’s good character. The court found that the trial judge had given a conventional direction to the jury, and that the comment about Jack the Ripper was not sufficient to vitiate the jury’s verdict.

No orders were made.

Orders