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Omot v The Queen

Omot v The Queen

Case [2016] VSCA 24 3 March 2016

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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,…

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 Omot v The Queen

Details

AGLC: Luka Omot v The Queen [2016] VSCA 24
Case: [2016] VSCA 24
Decision Date: 3 March 2016

CaseChat Overview and Summary

Omot was convicted of rape and other charges and appealed against his conviction. The complainant in the case had died before the trial, and the prosecution sought to adduce hearsay evidence of statements she made in committal proceedings. The trial judge admitted the evidence, finding that its probative value was not outweighed by the danger of unfair prejudice. The applicant also argued that the judge had erred in permitting the prosecution to lead evidence of his prior convictions for violence, arguing that his character in a particular respect had been put in issue. Finally, the applicant argued that the verdict was unsafe and unsatisfactory. The court considered whether the complainant’s hearsay evidence should have been admitted, whether the probative value of that evidence was outweighed by the danger of unfair prejudice, and whether the common law unfairness discretion applied. The court also considered whether the trial judge had erred in permitting the prosecution to lead evidence of the applicant’s prior convictions for violence, and whether the verdict was unsafe and unsatisfactory. The court found that the trial judge had not erred in admitting the hearsay evidence and that its probative value was not outweighed by the danger of unfair prejudice. The court also found that the trial judge had not erred in permitting the prosecution to lead evidence of the applicant’s prior convictions for violence. Finally, the court found that the verdict was safe and satisfactory. The appeal was dismissed.

Orders