Parker (a pseudonym) v The Queen - [2021] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0237

CHARLES PARKER[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

---

JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	21 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 139
JUDGMENT APPEALED FROM:	[2020] VCC 583 (Judge Gucciardo)

---

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

---

CRIMINAL LAW – Appeal – Conviction – Four charges of rape – Whether judge erred in directing jury on unreliable evidence, prior inconsistent statements and third element of offence of rape – Application for extension of time to file notice of application for leave to appeal – Grounds of appeal not reasonably arguable – Application for extension of time refused.

---

APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA:

Introduction and summary

On 12 December 2019, the applicant was convicted of four charges of rape and acquitted of one charge of rape by a County Court jury. On 8 May 2020, he was sentenced by the trial judge as set out in the table below:[2]
[2]DPP v Parker [2020] VCC 583.

Charge Offence Maximum Sentence Cumulation

1 Rape [Crimes Act 1958 s 38(1)][3] 25 years 5 years 1 year

2 Rape 25 years 5 years 1 year

3 Rape 25 years 5 years 1 year

5 Rape 25 years 5 years Base

Total effective sentence: 8 years’ imprisonment

Non-parole period: 5 years and 3 months

Pre-sentence detention declaration: 148 days

Other relevant orders: Sentenced as a serious sexual offender on charges 3 and 5 [Sentencing Act 1991 s 6F]
[3]References to the Crimes Act are to that Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.

Charge	Offence	Maximum	Sentence	Cumulation
1	Rape [Crimes Act 1958 s 38(1)][3]	25 years	5 years	1 year
2	Rape	25 years	5 years	1 year
3	Rape	25 years	5 years	1 year
5	Rape	25 years	5 years	Base
Total effective sentence: 8 years’ imprisonment
Non-parole period: 5 years and 3 months
Pre-sentence detention declaration: 148 days
Other relevant orders: Sentenced as a serious sexual offender on charges 3 and 5 [Sentencing Act 1991 s 6F]

The applicant seeks leave to appeal from his conviction on the following grounds:[4]

1There has been a substantial miscarriage of justice arising from the trial judge’s directions about unreliability.
2There has been a substantial miscarriage of justice arising from the trial judge’s directions about prior inconsistent statements.
3There has been a substantial miscarriage of justice arising from the trial judge’s directions about the third element of rape.

[4]All references to grounds of appeal in these reasons are to proposed grounds of appeal.

The applicant also seeks an extension of time within which to file his notice of application for leave to appeal.

For the reasons that follow, none of the grounds of appeal are reasonably arguable. As the application for leave to appeal is doomed to fail, the application for an extension of time will be refused.

Prosecution case

The prosecution case at trial is set out at [6]–[18] below. It is largely based on the evidence of the complainant (‘K’) and her friend (‘M’).

The applicant lived in a…

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 139
Case: [2021] VSCA 139
Decision Date: 21 May 2021

CaseChat Overview and Summary

The appeal before the court involved a defendant, referred to as Parker, who had been convicted on four charges of rape. The issue at the heart of the case was whether the trial judge had erred in several aspects of jury direction, specifically concerning the handling of unreliable evidence, prior inconsistent statements, and the third element of the offence of rape. The case was heard in the court of appeal, where the defendant sought to challenge the conviction based on these alleged errors in the trial process.

The legal issues the court was required to address were whether the trial judge had indeed erred in the directions given to the jury and, if so, whether these errors were significant enough to warrant a new trial. The court needed to examine the nature and extent of the alleged errors in jury direction and assess their impact on the fairness and outcome of the trial. The defendant argued that the judge's handling of unreliable evidence, prior inconsistent statements, and the third element of the offence of rape had compromised the integrity of the trial.

The court meticulously reviewed the trial judge's directions to the jury, scrutinising the manner in which evidence was presented and the instructions provided regarding the evaluation of unreliable evidence and prior inconsistent statements. The court also examined the jury's understanding of the third element of the offence of rape. After thorough deliberation, the court determined that the trial judge's directions were within the bounds of acceptable judicial practice and did not constitute reversible error. Consequently, the court found that the grounds of appeal were not reasonably arguable, leading to the dismissal of the appeal. The court also refused the defendant's application for an extension of time to file a notice of application for leave to appeal, concluding that the application did not meet the necessary criteria.

Orders