Criminal Law – Conviction and sentence – Rape – Whether applicant’s record of interview should have been excluded as involuntary because of implied threat allegedly made by police officer – Whether trial judge should have held voir dire where no such request made by counsel – Whether trial judge failed to relate law to facts of case – Application dismissed in relation to conviction – Whether non-parole period too long in relation to head sentence – Trial judge should have provided reasons for imposing longer than usual non-parole period – Application allowed in relation to sentence
---
APPEARANCES:
Counsel
Solicitors
For the Crown
Mr M A Gamble SC
Mr S Ward, Solicitor for Public Prosecutions
For the Applicant
Mr S Gillespie-Jones
Paul Vale Criminal Law
VINCENT JA: REDLICH JA: WEINBERG JA:
The applicant, Craig Bertrand, was convicted on 13 July 2007 in the County Court at Melbourne of one count of rape. He was acquitted of one count of indecent assault. On 22 August 2007, after a plea in mitigation, he was sentenced to five years and six months’ imprisonment with a non-parole period of four years. He now seeks leave to appeal against conviction and sentence.
The events surrounding this offence occurred in the early hours of Sunday 9 October 2005. The complainant, Ms Y, was aged about 50 at the relevant time. She had first met the applicant in August that year at a hotel in Frankston. Over the next two months, they began seeing each other and commenced a sexual relationship.
On Saturday 8 October 2005, the complainant spoke to the applicant by telephone. She said she would come to his house that night to play pool and to have a few drinks. She arrived at about 7.45 pm and parked behind his car, which was in the carport. She had not by that stage had dinner. She was wearing a long black dress, cardigan, and sandals. At one point during the evening, she removed her underpants because she said they felt uncomfortable.
The complainant said that over the next few hours the two of them drank, played pool, listened to music and danced. She believed that she drank about three cans of light beer and perhaps three cans of full-strength beer. She said that although she was affected by alcohol, she was not drunk. She was quite able to walk and to communicate clearly.
At one point, the applicant filmed her dancing to music while stripping off some clothing. A videotape of the dance was played to the jury.
It was common ground that some time later the complainant put her clothes back on and they resumed dancing together. At that stage, the applicant said to her: ‘I have a phone…
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 Bertrand
Sign in free to access the full text
Details
AGLC
R v Bertrand [2008] VSCA 182
Case
[2008] VSCA 182
Decision Date
CaseChat Overview and Summary
The case of R v Bertrand involved the applicant who was convicted of rape and sentenced by a lower court. The applicant sought to appeal both his conviction and the length of his non-parole period. The central issue in the appeal was whether the applicant's statement, which was recorded during an interview with a police officer, was involuntary due to an implied threat made by the officer. Another issue was whether the trial judge was required to conduct a voir dire when no such request was made by counsel. Additionally, the applicant argued that the trial judge failed to adequately relate the law to the facts of the case.
The court examined the applicant's arguments regarding the voluntariness of his statement and found that there was no implied threat made by the police officer that rendered the statement involuntary. The court held that the trial judge was not obligated to conduct a voir dire where no request was made by counsel. The court also found that the trial judge had not failed to relate the law to the facts of the case. Consequently, the appeal against the conviction was dismissed. However, the court held that the trial judge should have provided reasons for imposing a longer than usual non-parole period for the head sentence. The applicant's appeal in relation to the non-parole period was therefore allowed.
The final orders of the court were that the appeal against the conviction was dismissed, while the appeal against the length of the non-parole period was allowed. The court directed that the trial judge should provide reasons for the imposition of the longer than usual non-parole period. This decision highlights the importance of ensuring that statements made during police interviews are voluntary and that trial judges provide adequate reasons for their sentencing decisions.