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Pillay v The Queen

Pillay v The Queen

Case [2014] VSCA 249 13 October 2014

Conviction

Inconsistent verdicts

Appeal

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0130

DESANDREN PILLAY

Applicant

THE QUEEN

Respondent

S APCR 2014 0133

S APCR 2014 0144

WALTER TOGANIVALU

Applicant

THE QUEEN

Respondent

S APCR 2014 0135

FERETI DANSEY

Applicant

THE QUEEN

Respondent

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JUDGES:	MAXWELL P, WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2014
DATE OF ORDERS:	18 July 2014
DATE OF JUDGMENT:	13 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 249
JUDGMENT APPEALED FROM:	DPP v Toganivalu & Ors (Unreported, County Court of Victoria, Judge Tinney, 27 February 2014 (Conviction); 26 May 2014 (Sentence))

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CRIMINAL LAW – Conviction – Applications for leave to appeal – Inconsistent verdicts – Applicants convicted of indecent assault at first trial, jury unable to reach verdicts on two charges of rape – Applicants acquitted of rape charges at second trial – Circumstances relating to each charge substantially the same – Whether verdict of guilty on charge of indecent assault inconsistent with inability of jury at first trial to reach unanimous verdicts on rape charges – Leave to appeal granted – Appeal allowed – Convictions set aside – Verdicts of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Pillay	Ms C Randazzo SC	Doogue O’Brien George
For the Applicant Toganivalu	Mr D Stewart	Robert Stary Lawyers
For the Applicant Dansey	Mr T Sawyer	Valos Black & Associates
For the Crown	Mr G Silbert QC with Ms S Flynn	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA
SANTAMARIA JA:

On 18 July 2014, after the conclusion of oral argument, the Court granted each applicant leave to appeal against conviction. We ordered that each appeal be treated as instituted and heard instanter, and be allowed. We quashed the convictions sustained below, set aside the sentences passed thereon, and directed that a judgment and verdict of acquittal be entered in each case. We indicated that we would publish our reasons at a later date. The following are the reasons for our decision.

Background facts

In February 2014, the applicants stood trial in the County Court at Melbourne. Each applicant faced two charges of rape, and one charge of indecent assault. On 27 February 2014, they were each convicted of indecent assault. However, the jury were unable to agree upon a verdict in relation to the two counts of rape.

In late April and early May 2014, the applicants again stood trial in relation to the two rape charges. However, on that occasion they were acquitted of those charges.

The applicants subsequently sought leave to appeal against both conviction and sentence. Having regard to the decision reached in relation to each appeal against conviction, it is unnecessary to say anything more about the sentence.[1]
[1]For the sake of completeness, it may be noted that on the charge of indecent assault each applicant was sentenced to 15 months’ imprisonment with 10 months of that sentence suspended for a period of two years.

Broadly speaking, each applicant submitted that…

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 Pillay v The Queen

Details

AGLC: Pillay v The Queen [2014] VSCA 249
Case: [2014] VSCA 249
Decision Date: 13 October 2014

CaseChat Overview and Summary

The applicants in Pillay v The Queen were convicted of indecent assault at their first trial, with the jury unable to reach unanimous verdicts on two charges of rape. They were subsequently acquitted of the rape charges at their second trial. The applicants sought leave to appeal against their convictions for indecent assault, arguing that the verdicts were inconsistent given the jury's inability to reach a unanimous verdict on the rape charges in the first trial, where the circumstances of the charges were substantially the same. The court was required to decide whether the verdict of guilty on the charge of indecent assault was inconsistent with the jury's inability to reach unanimous verdicts on the rape charges.

The court noted that in cases where a jury is unable to reach a unanimous verdict on certain charges, the inconsistent verdicts doctrine may apply, requiring the acquittal of all charges. The court considered whether the circumstances of the indecent assault charge and the rape charges were so similar that a guilty verdict on the indecent assault charge could not be reconciled with the jury's inability to reach a verdict on the rape charges. The court found that the circumstances were indeed substantially the same, and the verdicts were inconsistent. The court granted leave to appeal and allowed the appeal, setting aside the convictions and entering verdicts of acquittal on all charges.

The final orders of the court were to set aside the applicants' convictions for indecent assault and to enter verdicts of acquittal on all charges, reflecting the inconsistency between the guilty verdict for indecent assault and the inability of the jury to reach a verdict on the substantially similar rape charges. This decision underscores the importance of the consistency of verdicts in criminal trials and the application of the inconsistent verdicts doctrine where appropriate.

Orders