Parker (a pseudonym) v The Queen - [2021] VSCA 348

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…

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 Parker (a pseudonym) v The Queen

Details

AGLC: Parker (a pseudonym) v The Queen [2021] VSCA 348
Case: [2021] VSCA 348
Decision Date: 13 December 2021

CaseChat Overview and Summary

The appellant, Parker, was convicted of the crime of rape and sought leave to appeal against that conviction. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The central issue in this case was whether the trial judge had inadequately or misdirected the jury regarding the unreliability of the complainant's evidence due to intoxication. Additionally, the appellant argued that the trial judge had enlarged the prosecution's case in the charge to the jury and that the prosecution's case was not sufficiently clear about the basis on which it was being conducted.

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.

Orders