R v Castles - [2007] VSC 561

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1480 of 2007

THE QUEEN

SHAUN PETER MAXWELL CASTLES

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JUDGE:	BONGIORNO J
WHERE HELD:	Ballarat
DATE OF HEARING:	26 November 2007
DATE OF RULING:	26 November 2007
CASE MAY BE CITED AS:	R v Castles (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 561

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CRIMINAL LAW – Presentment – Rape count – Penile penetration – Other forms of penetration – Duplicity on the one count – Statutory interpretation – s 35, s 38 Crimes Act1958 – Romeyko v Samuels (1972) 2 SASR 529; DPP v Merriman [1973] AC 584.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Jones	OPP
For the Defendant	Mr T. Danos	Mike Wardell

HIS HONOUR:

Shaun Peter Maxwell Castles has been presented by the Director of Public Prosecutions on a three count presentment alleging three serious offences against Theresa Marie Cliff of attempted murder, intentionally causing serious injury and rape. However, on an even cursory look at the depositional material filed on this presentment, it is clear that the prosecutor has misstated the name of the victim of these alleged crimes. In fact, Theresa Marie Cliff is a witness, not the alleged victim, whose name is Roslyn Elizabeth Withers.

At the commencement of the trial this morning, the prosecutor Mr Jones sought to amend the presentment to reflect the Crown’s true case in this respect. Counsel for the accused conceded that the application came as no surprise to him. He did not oppose it. It was granted pursuant to s 372(1) of the Crimes Act 1958.

A second problem in the presentment identified by the prosecutor could not be so easily dealt with. The depositions, by which the evidence to be led in this trial is put on the record, include, as might be expected, material going to the issue of sexual penetration of the victim.

That material however, appears to lack specificity, as to the manner of such penetration. The victim herself is unable to throw any light on the issue and the medical evidence is equivocal as to what actual object penetrated the victim’s vagina in the course of the alleged rape, forming the basis of Count 3 on the presentment. That evidence goes no further than establishing what was described by a forensic physician as “recent blunt vaginal penetration causing bruising”. She said such penetration could have been by “fingers, a penis or another (sic) inanimate object.”

Count 3 on the presentment alleges what would have once been called rape at common law: that is to say, penile vaginal penetration without consent. Clearly the Crown could not establish that case on the available evidence.

It appears this situation became apparent to the prosecutor some time over the weekend, so that this morning he sought a second amendment to the presentment to recast the third count to allege penetration by the accused of the vagina of the victim, using his penis, a part of…

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 Castles

Details

AGLC: R v Castles [2007] VSC 561
Case: [2007] VSC 561
Decision Date: 26 November 2007

CaseChat Overview and Summary

The case of R v Castles involved a criminal prosecution where the defendant was charged with the offence of rape. The dispute centred on whether the count in the indictment was defective due to its inclusion of multiple forms of penetration, specifically penile penetration and other forms of penetration, within a single count. This raised questions about the validity of the charge and its compliance with statutory requirements. The High Court of Australia was tasked with resolving these issues.

The primary legal issue before the court was whether the indictment's description of the offence of rape, which included both penile penetration and other forms of penetration, was compliant with statutory requirements under the Crimes Act 1958. The court had to determine if this constituted a defect known as duplicity, which could potentially render the charge invalid. The court was also required to interpret the relevant sections of the Act to ascertain the legislative intent and whether the indictment met the statutory standards.

The High Court examined the statutory provisions and previous cases, such as Romeyko v Samuels and DPP v Merriman, to understand the requirements for an indictment. The court found that the inclusion of different forms of penetration within a single count did not necessarily constitute duplicity, provided that the different forms of penetration were alternative means of committing the same offence of rape. The court emphasised the importance of ensuring that the charge clearly informed the defendant of the nature of the offence, but held that the indictment in this case sufficiently described the offence of rape in a way that met statutory requirements. Consequently, the court concluded that the charge was not defective.

The High Court determined that the indictment was valid and did not suffer from duplicity. The court's decision affirmed that the charge of rape could include multiple forms of penetration within a single count, as long as it adequately informed the defendant of the nature of the offence. The court's interpretation of the statutory provisions ensured that the legislative intent was upheld, and the defendant's right to be informed of the charges against them was protected.

Orders