Palliyaguruge v The Queen - [2022] VSCA 159

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0104

DON KUSHAN PALLIYAGURUGE Applicant v

THE QUEEN Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHEREHELD:	Melbourne
DATE OFHEARING:	16 June 2022
DATE OFJUDGMENT:	12 August 2022
MEDIUMNEUTRAL CITATION:	[2022] VSCA 159
JUDGMENT APPEALEDFROM:	[2021] VCC 958 (Judge Chambers)

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CRIMINAL LAW – Appeal – Conviction – Three counts of rape – Whether convictions unreasonable or unable to be supported – Complainant heavily intoxicated – Complainant’s memory imperfect and incomplete – Part of complainant’s account falsified by CCTV footage

– Whether jury bound to treat complainant’s evidence as generally unreliable – Evidence specific and resolute as to essential features of offending – Key parts of account corroborated

– Jury entitled to treat critical parts of complainant’s evidence as reliable – Whether complainant’s account of digital-vaginal penetration inherently implausible – Penetration by driver while complainant in back seat of moving vehicle – Account not inherently implausible

– Jury entitled to convict on basis that complainant was mistaken as to sequence but not fact of offending – Whether conviction on circumstantial case unsafe – Complainant lacked memory of penile penetration – Complainant’s DNA found on applicant’s penis – Inference

that penetration occurred supported by other circumstantial evidence – Possibility of secondary transfer of DNA did not compel reasonable doubt – Convictions reasonably open – Leave to appeal granted – Appeal dismissed.

Criminal Procedure Act 2009 s 276(1)(a).

Morris v The Queen (1987) 163 CLR 454, M v The Queen (1994) 181 CLR 487, R v Baden- Clay (2016) 258 CLR 308, Fennell v The Queen (2019) 93 ALJR 1219, Coughlan v The Queen (2020) 267 CLR 654, Pell v The Queen (2020) 268 CLR 123, Dansie v The Queen [2022] HCA

25, followed; Fitzgerald v The Queen (2014) 88 ALJR 779, distinguished.

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[Insert year] VSCA 159 1 THE COURT JA

Counsel

Applicant: Mr P J Smallwood with Mr A Grant

Respondent: Ms D Piekusis QC

Solicitors

Applicant: Paul Vale Criminal Law

Respondent: Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA McLEISH JA:

On 9 March 2021, following a trial in the County Court, the applicant was convicted by a jury of three charges of raping the complainant (‘PG’) early one morning in late 2018.

The rapes were alleged to have occurred after the two of them departed a nightclub together in the applicant’s car. They had met for the first time a short while earlier at the club. PG was heavily intoxicated. Between leaving the club and PG arriving home, they spent around 90 minutes together in the applicant’s car, and in his home.

Charge 1 and charge 2 alleged, respectively, that the applicant penetrated PG with his fingers and then his tongue while she was in his car. Charge 3 alleged that the applicant penetrated PG with his penis while she was in his bedroom.

The applicant and PG gave different accounts of what happened in the applicant’s car and bedroom.…

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.

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Details

Case: [2022] VSCA 159
Decision Date: 12 August 2022

CaseChat Overview and Summary

The applicant appealed against his convictions on three counts of rape, arguing that the jury's verdict was unreasonable and not supported by the evidence. The High Court of Australia was tasked with determining whether the jury's decision was justified in light of the complainant's heavily intoxicated state, which affected her memory, and the partial falsification of her account by CCTV footage. The court needed to assess whether the jury was bound to consider the complainant's evidence as generally unreliable, given the circumstances, and whether the convictions were based on an unsafe and unsatisfactory case.

The court considered that the jury was not obligated to disregard the complainant's evidence as unreliable in its entirety, as the evidence was specific and resolute regarding the essential features of the offending. The complainant's account was corroborated in key parts, and the jury was entitled to accept those parts as reliable. The court held that the complainant's account of the digital-vaginal penetration, which occurred while she was in the back seat of a moving vehicle, was not inherently implausible. Although the complainant might have been mistaken about the sequence of events, the jury was entitled to convict based on the fact of the offending. The court also found that the circumstantial evidence, including the complainant's DNA on the applicant's penis, supported the inference that penetration occurred, and the possibility of secondary transfer of DNA did not compel reasonable doubt.

The court concluded that the convictions were reasonably open to the jury, and the appeal was dismissed. The jury was entitled to convict based on the complainant's evidence, despite her intoxicated state and imperfect memory. The circumstantial evidence, when considered alongside the complainant's account, was sufficient to support the convictions. The court granted leave to appeal but ultimately dismissed it, affirming the convictions on all three counts of rape.

Orders