SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0237
| CHARLES PARKER (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2021 |
| DATE OF JUDGMENT: | 13 December 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 348 |
| JUDGMENT APPEALED FROM: | [2020] VCC 583 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Election under Criminal Procedure Act s 315(2) – Jury directions – Whether judge inadequately directed or misdirected jury as to unreliability of complainant’s evidence due to intoxication – Whether judge enlarged the prosecution case in charge to the jury – Whether prosecution conducted case on basis that complainant was unable to consent – Prosecution reference to incapacity to consent in oral opening sufficient with other indirect references to show prosecution case was put on that basis – That complainant actively refused consent and was incapable of consenting not mutually exclusive bases for second element of rape – Crimes Act 1958 ss 36, 38, Jury Directions Act 2015 ss 12, 32, 46, 47; King v The Queen (1986) 161 CLR 423, RR v The Queen [2013] VSCA 147, Arafan v The Queen (2010) 31 VR 82, R v GAS [1998] 3 VR 862, Johnson v Miller (1937) 59 CLR 467 considered – Extension of time in which to file notice of application to seek leave to appeal granted – Leave to appeal against conviction granted – Appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston | Slades & Parsons Solicitors |
| For the Respondent | Mr B L Sonnet | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
Having had the considerable advantage of reading in draft the reasons for judgment of T Forrest JA and Macaulay AJA, for the reasons they give, I agree that ground 1 cannot be upheld.
By virtue of s 36(2)(e) of the Crimes Act 1958, a circumstance in which a person does not consent to an act of sexual penetration for the purposes of a charge of rape is if ‘the person is so affected by alcohol or another drug as to be incapable of consenting to the act’.
In a trial for rape (or other sexual offence), if reliance is sought to be placed on s 36(2)(e) as a basis for conviction, axiomatically it is incumbent upon the prosecution in unequivocal terms to disclose that reliance from the outset. A person accused of rape (or other sexual offence) is entitled to know before a trial begins the manner in which the prosecution will put its case against him or her — including whether it is alleged that a complainant was unable consent to by reason of intoxication — and the acts, facts, matters and circumstances being relied on to support a finding of guilt.
Plainly, there was no direct mention of the complainant’s incapacity to consent, or of s 36(2)(e), in the summary of prosecution opening contemplated…
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- AGLC
- Parker (a pseudonym) v The Queen [2021] VSCA 348
- Case
- [2021] VSCA 348
- Decision Date
CaseChat Overview and Summary
The Court of Appeal examined the trial judge's directions to the jury and found that the directions were not inadequate or misdirections. The court held that the prosecution reference to incapacity to consent in the oral opening, along with other indirect references, was sufficient to demonstrate that the prosecution's case was being conducted on the basis that the complainant was unable to consent. The court also clarified that the complainant actively refusing consent and being incapable of consenting were not mutually exclusive bases for the second element of rape. The Court of Appeal found that the trial judge's directions were adequate and that the prosecution's case was properly conducted. Consequently, the appeal against the conviction was refused.
The Court of Appeal granted the appellant's application for an extension of time to file a notice of application to seek leave to appeal. The appellant's leave to appeal against the conviction was granted, but the appeal against the conviction was ultimately refused.
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