R v Benis

[2010] VSCA 62

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0584

THE QUEEN

v

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:

1. 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.

1. 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. 

1. 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.

1. 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 applicant entered the complainant’s

bedroom believing that he was not entitled to do so, or reckless as to whether or not he was entitled to do so, when in fact he was not entitled to entered the room; that a person was present and the applicant believed that was so or was reckless as to the presence of a person; and the applicant intended to commit an offence involving an assault to the person in the room.

1. Counsel for the respondent agreed with this analysis.  He submitted that the jury had a reasonable doubt as to the issue of consent and that doubt would logically have to carry through to the intent of the applicant on entry to the bedroom.  There was a factual inconsistency between the two verdicts, which could not be reconciled.

1. Accordingly I would quash the conviction and in lieu thereof enter a verdict of acquittal.

MAXWELL P:

1. I agree.

HARPER JA:

1. I also agree.

MAXWELL P:

1. The order of the Court is as follows.

1.        The application for leave to appeal against conviction is granted. 

2.        The appeal is treated as having been instituted and heard instanter and allowed.

3.        The conviction on Count 2 is quashed and in lieu thereof it is ordered that a verdict of acquittal be entered.

1. We grant a certificate to the applicant under the Appeal Costs Act.

1. Before concluding the matter, it is appropriate to acknowledge the prompt action of the Office of Public Prosecutions in drawing to the Court’s attention the fact that there was a concession on this ground accompanied by the suggestion that the matter be listed for hearing urgently.  That has occurred and we commend the OPP for that action.  It is exactly what is required in such a case.

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