R v Benis - [2010] VSCA 62

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0584

THE QUEEN

NICHOLAS MICHAEL BENIS

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JUDGES:	MAXWELL P, BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 March 2010
DATE OF JUDGMENT:	25 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 62
JUDGMENT APPEALED FROM:	R v Benis, (Unreported, 3 April 2009, County Court of Victoria, Judge Wilmoth)

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CRIMINAL LAW – Inconsistent verdicts – Acquittal on a count of rape and conviction on a count of aggravated burglary irreconcilable.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Elisabeth Nickolls

BUCHANAN JA:

After a trial in the County Court, the applicant was found guilty on a count of aggravated burglary and acquitted on a count of rape. The complainant, who was aged 16 years when the offences were alleged to have been committed, gave evidence that the applicant attended a party that was held at her house. Later that night the complainant went to sleep in her bedroom but she said that she awoke to find the applicant on top of her with his penis in her vagina. She pushed him off and turned on the light. She said that the applicant looked surprised. She screamed, ‘What are you doing?’ Pushed him away, pulled up her pants and ran out of the room encountering her sister and other people. She told them she had been raped. The complainant’s sister corroborated the evidence of the complainant.

The applicant gave evidence. He said that he was 22 years old on the night of the party. He lived next door and attended the party with two friends who had been invited. The applicant said that he saw the complainant in her room, her door was ajar, the light on and the complainant was looking at him. He entered the room, closed the door and got on to the bed with the complainant. The applicant said that he engaged in foreplay with the complainant and then sexual intercourse. When he penetrated her vagina with his penis, she put her hands on his chest and said, ‘I can’t do this, I’m only 16.’ The applicant said that he rolled off her. He said that the complainant dressed herself and left the room.

The applicant seeks leave to appeal against the conviction. It is only necessary to refer to one of the grounds of the application, that the verdicts were inconsistent.

The only issue at trial was whether the complainant consented to the applicant having sexual intercourse with her. Having regard to the competing versions of the complainant and the applicant, the jury could not have thought that the applicant incorrectly believed the complainant was consenting. The jury must have found that the light was on and the complainant was awake. In those circumstances there was no basis upon which the jury could have been satisfied of the elements of trespass, that is, that the…

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 R v Benis

Details

AGLC: R v Benis [2010] VSCA 62
Case: [2010] VSCA 62
Decision Date: 25 March 2010

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Benis, the appellant faced trial in the Supreme Court of Victoria. The case centred around allegations of serious criminal activity, including rape and aggravated burglary. The jury delivered inconsistent verdicts, acquitting the appellant of the charge of rape while convicting him of aggravated burglary. The appellant contested the conviction, appealing on the grounds that the verdicts were irreconcilable and that the jury must have acquitted him of both charges or convicted him of both. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue before the court was whether the inconsistent verdicts were permissible under the law. The appellant argued that the inconsistency in the jury's verdicts, acquitting him of one serious offence and convicting him of another, indicated a fundamental flaw in the jury's process. The court needed to determine if the verdicts were legally sound and whether there were any grounds for ordering a retrial or dismissing the conviction. This required an examination of the principles governing jury verdicts and the circumstances under which a retrial might be warranted.

The Court of Appeal held that the inconsistent verdicts were indeed irreconcilable, as they could not logically coexist. The court found that where the jury acquitted the appellant of the more serious charge of rape, it must have been because they had reasonable doubt about the elements of that offence. Consequently, if they acquitted him of rape, they should also have acquitted him of the lesser charge of aggravated burglary, as the evidence required to prove the burglary was inherently contained within the evidence required to prove the rape. The court concluded that the inconsistency rendered the verdict on aggravated burglary unsafe and unreliable. The appeal was allowed, the conviction for aggravated burglary was quashed, and the appellant was acquitted of that charge. No orders were made regarding the acquittal on the rape charge.

Orders