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Niaros v The Queen

Niaros v The Queen

Case [2013] VSCA 249 13 September 2013

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0004

SIROS NIAROS	Applicant
	v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 July 2013
DATE OF JUDGMENT:	13 September 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 249 1^st Revision: 16 September 2013 paragraph 26 2^nd Revision: 25 October 2013 Catchwords Paras 6, 8, 17, 24, 30, 33, 39, 65, 81 Footnotes 3, 4, 5, 8, 19, 21
JUDGMENT APPEALED FROM:	DPP v Niaros (Unreported, County Court of Victoria, Judge Campton, 12 December 2012)

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CRIMINAL LAW – Appeal – Conviction – Rape – Assault with intent to rape – Verdicts not factually inconsistent because of a sufficient evidentiary basis for jury to acquit on sexual offence charges for earlier acts but convict on charges for later acts – Jury entitled to reject the evidence that the applicant was aware of complainant’s lack of consent during early acts but accept the evidence that he was aware of her lack of consent during later acts – Common law rule against self corroboration – Evidence of a prior consistent statement may be admitted to rebut an attack upon general credibility – Evidence Act2008 (Vic) s 108(3) – Verdict not unsafe and unsatisfactory – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S R Johns	Galbally & O’Bryan
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I would refuse the application for leave to appeal against conviction for the reasons given by Neave JA, whose judgment I have had the advantage of reading in draft. I also agree with the additional observations of Redlich JA.

NEAVE JA:

The applicant, Siros Niaros, was found guilty by a County Court jury of digital rape (charge 4) and assault with intent to rape (charge 5). He was acquitted on two charges of indecent assault (charges 1 and 3) and another charge of digital rape (charge 2).[1] All of the charges related to alleged offences occurring on a single occasion. The applicant now seeks leave to appeal against his convictions on charges 4 and 5.
[1]It was unnecessary for the jury to return a verdict on charge 6, which alleged indecent assault as an alternative to assault with intent to rape.

The Crown and defence cases

The Crown case was that the offences occurred in the toilet provided for disabled patrons (the ‘disabled toilet’) at the Orange Whip Nightclub on Christmas Eve 2010. The complainant, then aged 27, worked casually as a member of the bar staff and the applicant, then aged 39, was a crowd controller at the nightclub. They knew each other because they both worked at Orange Whip on Saturday nights. The complainant did not know the applicant’s surname and they had not been involved in social activities together.

On Christmas Eve the complainant and her friend, RS, met at the complainant’s home and at about 11.30 pm were driven by 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 Niaros v The Queen

Details

AGLC: Niaros v The Queen [2013] VSCA 249
Case: [2013] VSCA 249
Decision Date: 13 September 2013

CaseChat Overview and Summary

The case of Niaros v The Queen involved the appellant, who was convicted of rape and assault with intent to rape. The dispute revolved around the sufficiency of the evidence to support the jury's verdicts and whether they were factually inconsistent. The matter was heard in the Court of Appeal. The appellant argued that the verdicts were inconsistent because the jury acquitted him of charges related to earlier acts but convicted him of charges related to later acts. The central legal issues were whether there was a sufficient evidentiary basis for the jury to reach such a decision and if the common law rule against self-corroboration and the provisions of the Evidence Act 2008 (Vic) s 108(3) were properly applied.

The court examined the evidence and concluded that the jury was entitled to reject the evidence that the appellant was aware of the complainant’s lack of consent during the earlier acts but accept the evidence that he was aware of her lack of consent during the later acts. The court emphasised that the jury could consider the temporal proximity of the events and the consistency of the complainant's evidence in reaching their verdict. The court also noted that the rule against self-corroboration did not prevent the jury from accepting the complainant's testimony as corroborated by other evidence, including the appellant's admissions. The court further explained that evidence of a prior consistent statement could be admitted to rebut an attack upon the general credibility of the complainant, as permitted by the Evidence Act 2008 (Vic) s 108(3). The court found that the verdicts were not unsafe and unsatisfactory, and thus the application for appeal was refused.

The court's decision upheld the convictions, affirming that the jury's verdicts were supported by the evidence and did not suffer from any legal infirmities. The court rejected the appellant's argument that the verdicts were inconsistent and found no basis to interfere with the jury's assessment of the evidence.

Orders