R v Bevinetto

Case [2018] QCA 219

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bevinetto [2018] QCA 219

PARTIES:

R
v
BEVINETTO, Christopher Andrew
(appellant)

FILE NO/S:

CA No 10 of 2018
DC No 220 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 14 December 2017 (Devereaux SC DCJ)

DELIVERED ON:

18 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2018

JUDGES:

Sofronoff P and Henry and Crow JJ

ORDERS:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT AGAINST EVIDENCE – where the appellant was convicted of one count of rape – where the appellant’s girlfriend walked in on the appellant engaged in intercourse with the complainant – where the complainant and the appellant’s girlfriend both gave evidence that the complainant was asleep at the time that the appellant was penetrating her – where the appellant gave evidence that the complainant was awake and had given her consent to sexual intercourse – where the complainant gave evidence that the appellant’s girlfriend woke her up, yelling at her that the appellant had “tried to rape” her – where the appellant’s girlfriend was firm in her recollection that she did not use the term “rape” – where the appellant submits that the appellant’s girlfriend was a reliable witness and that her insistence that she did not use the term “rape” was destructive of the reliability of the complainant’s evidence – whether the verdict was unreasonable or not supported by the evidence, having regard to this inconsistency between the complainant and appellant’s girlfriend as to whether the word “rape” had been used

CRIMINAL LAW – APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – MISCARRIAGE OF JUSTICE – where the complainant gave evidence that she felt no pain in her vagina after she woke up – where the appellant’s girlfriend gave evidence that she heard the complainant moaning, but was not prepared to ascribe any reason for these sounds made by the complainant – where defence counsel submitted that the jury ought to have a reasonable doubt concerning the issue of consent, given the evidence as to moaning and absence of vaginal discomfort – where the Crown prosecutor submitted in his closing address that the jury, using their common sense and life experience, may find that the moaning was simply unconscious moaning made in the course of the complainant’s sleep – where the Crown prosecutor submitted that the jury, using their common sense and life experience, could find that the absence of vaginal discomfort is not necessarily inconsistent with the appellant having raped the complainant – whether the comments made by the Crown prosecutor regarding moaning and vaginal discomfort went beyond the bounds of appropriate comment and thereby gave rise to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant submits that the trial judge erred in failing to direct the…

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R v Bevinetto [2018] QCA 219
Case
[2018] QCA 219
Decision Date

CaseChat Overview and Summary

The appellant was convicted of one count of rape following a trial in the Supreme Court. The complainant and the appellant’s girlfriend both testified that the complainant was asleep when the appellant was engaging in intercourse with her. The complainant testified that she awoke to the appellant’s girlfriend yelling that the appellant had “tried to rape” her. The appellant’s girlfriend maintained that she did not use the term “rape” but rather “tried to attack” her. The appellant gave evidence that the complainant was awake and had consented to the sexual intercourse. The appellant appealed the conviction on multiple grounds, including that the verdict was against the evidence, that the Crown prosecutor’s comments regarding moaning and vaginal discomfort constituted a miscarriage of justice, and that the trial judge erred in failing to direct the jury as to the complainant’s motive to lie.

The court found that the complainant’s evidence was consistent and reliable, and that the appellant’s girlfriend’s insistence that she did not use the term “rape” did not undermine the reliability of the complainant’s evidence. The court also found that the Crown prosecutor’s comments regarding moaning and vaginal discomfort were within the bounds of appropriate comment and did not give rise to a miscarriage of justice. The court further found that the defence case did not require the trial judge to direct the jury as to the complainant’s motive to lie, as the defence did not seek such a direction and the case was not run in such a way as to give rise to a miscarriage of justice.

The appeal was dismissed, and the conviction was upheld. The court found that the jury was entitled to believe the complainant’s evidence and that the evidence supported the verdict of guilt. The court found that the Crown prosecutor’s comments did not improperly influence the jury, and that the trial judge’s failure to direct the jury as to the complainant’s motive to lie did not give rise to a miscarriage of justice. The conviction and sentence of the appellant were therefore affirmed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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