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Palise v The King

Palise v The King

Case [2024] VSCA 51 28 March 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0196

HARLEY JARTHUR PALISE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, BOYCE, and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2024
DATE OF JUDGMENT:	28 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 51
JUDGMENT APPEALED FROM:	[2021] VCC 2071 (Judge Johns)

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CRIMINAL LAW – Appeal – Conviction – Rape – Prosecution case that applicant assisted or encouraged to rape complainant or agreed with principal offender to rape complainant – Whether verdict unreasonable or cannot be supported by the evidence – Whether evidence sufficient to establish that complainant so intoxicated that did not consent to sexual penetration by co-offender and that co-offender did not have reasonable belief complainant consenting –Whether evidence sufficient to establish that applicant encouraged or assisted co-offender to rape complainant or agreed that co-offender rape complainant.

Crimes Act 1958 (Vic) ss 36, 323 (1) (a), (c), 324 (1).

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Counsel
Applicant:		Mr M Weinman
Respondent:		Ms M Mahady
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

The applicant was charged on indictment with two charges of rape, which were alleged to have been committed on 16 June 2018. After a sixteen day trial, on 20 August 2021 the jury returned a verdict of guilty in relation to both charges.
Following a plea presented on his behalf, the applicant, on 16 December 2021, was sentenced by the trial judge as follows:

Charge Offence Maximum Sentence Cumulation

1 Rape 25 years 8 years 6 months Base

2 Rape 25 years 8 years 1 year 6 months

Total Effective Sentence: 10 years’ imprisonment

Non-Parole Period: 6 years and 3 months’ imprisonment

Pre-sentence Detention 874 days

Other orders Forfeiture order

The applicant seeks leave to appeal against his conviction on charge 2 on the ground that the jury verdict on that charge was unreasonable, or could not be supported having regard to the evidence.
The applicant did not file a notice of application for leave to appeal against conviction until 20 December 2022. On 16 December 2022, he filed an application for an extension of time within which to file the notice of application for leave to appeal. The application for extension of time was supported by an affidavit of the applicant’s solicitor, affirmed 15 December 2022.

Extension of time

It is clear that there has been a very substantial delay in the filing of the notice of application for leave to appeal in this matter, as the time, prescribed by s 275(1) of the Criminal Procedure Act 2009 within which to file that application, expired on 13 January 2022.
The application for an extension of time was supported by an affidavit of the applicant’s solicitor, which explained the lengthy delay in the filing of the application for leave to appeal.
The applicant engaged his current solicitors on 18 March 2022, to consider making an application for leave to appeal against conviction and sentence. During the following four months,…

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 Palise v The King

Details

AGLC: Palise v The King [2024] VSCA 51
Case: [2024] VSCA 51
Decision Date: 28 March 2024

CaseChat Overview and Summary

Palise v The King is an appeal against conviction for rape, where the applicant was found to have assisted or encouraged the principal offender in raping a complainant. The case was heard in the Court of Appeal. The central legal issue was whether the verdict was unreasonable or unsupported by the evidence. The court needed to determine if the evidence was sufficient to establish that the complainant was so intoxicated that she did not consent to sexual penetration by the co-offender and that the co-offender did not have a reasonable belief that the complainant was consenting. Additionally, the court had to assess if the evidence was sufficient to establish that the applicant encouraged or assisted the co-offender in raping the complainant or agreed with the co-offender that he would rape her.

The court reviewed the evidence presented in the trial and concluded that the jury's decision was not unreasonable. The court found that the evidence was sufficient to establish that the complainant was so intoxicated that she did not consent to sexual penetration by the co-offender, and the co-offender did not have a reasonable belief that the complainant was consenting. Furthermore, the court determined that the evidence was sufficient to establish that the applicant encouraged or assisted the co-offender in raping the complainant or agreed with the co-offender that he would rape her. The appeal was dismissed, and the conviction was upheld.

No additional orders were made by the court. The applicant's appeal against his conviction for rape was dismissed, and the conviction was upheld.

Orders