Pafitis v The Queen - [2000] TASSC 52

[2000] TASSC 52

CITATION: Pafitis v R [2000] TASSC 52

PARTIES:  PAFITIS, Aris Demetrios
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 111/1999
DELIVERED ON:  29 May 2000
DELIVERED AT:  Hobart
HEARING DATE:  20, 21 March 2000
JUDGMENT OF:  Cox CJ, Crawford J, Slicer J

CATCHWORDS:

Criminal Law - Particular offences - Other offences against the person - Sexual offences - Rape and sexual assault - Consent - General principle - Direction to jury - Whether complainant overborne by nature or position of the accused - Issue not raised by evidence - Direction inappropriate.

Criminal Code (Tas), s2A(2)(b).
Aust Dig Criminal Law [151]

REPRESENTATION:

Counsel:
             Appellant:  D Grace QC, A I Gaggin
             Respondent:  M A Stoddart
Solicitors:
             Appellant:  Jennings Elliott
             Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 52
Number of paragraphs: 27

Serial No 52/2000
File No CCA 111/1999

ARIS DEMETRIOS PAFITIS v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
CRAWFORD J
SLICER J
29 May 2000

Orders of the Court

See addendum.

Serial No 52/2000
File No CCA 111/1999

ARIS DEMETRIOS PAFITIS v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
29 May 2000

On 22 March 2000 at the conclusion of argument on all save one of the grounds of appeal which was then adjourned to Second Term, we indicated that we were of the view that ground 1 had been made out and that the appellant's conviction of rape on counts 1 and 2 of the indictment could not stand. We said that we would publish our reasons at a later time and that we would not make any formal orders as to the disposition of the appeal in respect of the other counts of which the appellant was convicted until the other grounds of appeal had been resolved. These are the reasons for the view I took in respect of counts 1 and 2.

The appellant was indicted on three counts of rape at Taroona on 22 May 1998 and on three counts of the crime of having sexual intercourse with a young person under the age of 17 years on three separate occasions between 29 June 1998 and 18 July 1998. The complainant was 16 years old at all material times and attained the age of 17 years on 16 August 1998. The appellant was 39 years old. The appellant did not dispute that intercourse occurred between him and the complainant twice on the night of 22 May, but he disputed that the complainant had not consented to those acts. He denied that sexual intercourse had occurred three times as alleged by her and his acquittal on the third count shows that the jury were not satisfied that that had in fact occurred on the third occasion. They returned a verdict of guilty on the first two counts of rape.

The appellant was the proprietor of a Hobart café. The complainant gave evidence that one of her sisters…

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 Pafitis v The Queen

Details

AGLC: Pafitis v The Queen [2000] TASSC 52
Case: [2000] TASSC 52
Decision Date: 29 May 2000

CaseChat Overview and Summary

The appellant, Aris Demetrios Pafitis, appealed against his convictions for rape and unlawful sexual intercourse with a minor. The appeal was heard by the Court of Criminal Appeal in Tasmania. The central issue was whether the trial judge had erred in his directions to the jury concerning the concept of consent, particularly in relation to whether the complainant had been overborne by the nature or position of the appellant. The court held that the trial judge's directions on this point were inappropriate as there was no evidence suggesting that the complainant had consented to the sexual acts due to being overborne by the appellant's status or position. The court found that the complainant had clearly communicated her non-consent throughout the encounters. Consequently, the convictions on counts 1 and 2 were quashed, and the appellant was remanded for retrial on those counts. The court did not address the other counts at that time.

Orders