SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0180
| LUKA OMOT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 February 2016 |
| DATE OF JUDGMENT: | 3 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 24 |
| JUDGMENT APPEALED FROM: | DPP v Omot (Unreported, County Court of Victoria, Judge Cannon, 13 March 2015 (Conviction)) |
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CRIMINAL LAW — Appeal — Conviction — Trial of sexual offences — Complainant deceased — Hearsay — Whether complainant’s evidence in committal proceedings admissible — Whether probative value of evidence is outweighed by danger of unfair prejudice — Whether common law unfairness discretion applies — Evidence Act 2008, ss 65 and 137 — Haddara v The Queen (2014) 43 VR 53.
CRIMINAL LAW — Appeal — Conviction – Trial of sexual offences – Character in a particular respect — Applicant had prior convictions for violence offence but none for sexual offences — Whether judge erred in permitting prosecution to lead evidence of prior convictions for violence if character put in issue — Evidence Act 2008, s 110 — Bishop v The Queen (2013) 39 VR 642.
CRIMINAL LAW — Appeal — Conviction — Rape — Complainant deceased — Whether verdict unsafe and unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Bayles | Emma Turnbull Lawyers |
| For the Crown | Ms F Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH
PRIEST
BEACH JJA:
Introduction
Having regard to a number of factors that we will later discuss, we are of the opinion that the applicant’s conviction for rape is unsafe and unsatisfactory. Thus ground 4 — which claims that the verdict is unsafe and unsatisfactory — must be upheld, the conviction set aside and a judgment of acquittal entered.[1]
[1]Criminal Procedure Act 2009, s 277(1)(b).
There is no substance, however, in any of the other grounds of appeal.
Overview
Following a trial in the County Court, the applicant was found guilty by a jury of anally raping the female complainant, ‘AD’, with his penis.
The applicant and AD were known to each other. Both were of Sudanese origin. They had a mutual friend, ‘IA’. The rape was said to have occurred in the bathroom of IA’s unit in the evening of 20 October 2010, following a deal of socialising and a great deal of drinking.
At about 9.15am the following morning, the complainant told a social worker, ‘MH’, that she had been anally raped the previous night. MH subsequently took the complainant to the Royal Women’s Hospital, where the Centre Against Sexual Assault (‘CASA’) was located. AD provided an account of the alleged rape to police, and underwent a medical examination.
On 8 January 2011, the applicant was arrested. He was interviewed on 9 January 2011, and denied having sex with the complainant (although, as will be seen, he did not maintain that denial at trial).
AD gave evidence at committal proceedings on 20 December 2011. As is the usual practice,…
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- AGLC
- Luka Omot v The Queen [2016] VSCA 24
- Case
- [2016] VSCA 24
- Decision Date
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