R v Castles (Ruling no 2)

[2007] VSC 562

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1480 of 2007

THE QUEEN

v

SHAUN PETER MAXWELL CASTLES

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JUDGE:	BONGIORNO J
WHERE HELD:	Ballarat
DATE OF HEARING:	3  December 2007
DATE OF RULING:	3 December 2007
CASE MAY BE CITED AS:	R v Castles (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 562

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CRIMINAL LAW – Rape – No case submission – Amnesia of victim – Injuries consistent with consent – Jury directed to acquit – Doney v R (1990) 171 CLR 207.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Jones	OPP
For the Accused	Mr T. Danos	Mike Wardell

HIS HONOUR:

1. The accused, Shaun Peter Maxwell Castles, has been presented on one count of attempted murder, alternatively one count of intentionally causing serious injury, and one count of rape.  The Crown case has closed and a no case submission as to the count of rape has been made on Mr Castles' behalf.

1. Put simply, his counsel submits that there is no evidence whatsoever to support a finding that if there was any sexual penetration of the complainant by Castles such penetration was without the complainant's consent.  The complainant herself was unable by reason of amnesia to give any relevant evidence of what transpired on the night of the alleged rape.

1. The Crown relies for proof of sexual penetration upon the opinion of a forensic physician, Dr Angela Williams, who examined the complainant some hours after she had been found in a severely injured state on the bathroom floor of a house in North Ballarat.  Dr Williams' opinion was that injuries to the complainant's vagina may have resulted from penetration with fingers, a penis or another inanimate object. That penetration was beyond the vaginal introitus, said Dr Williams. It was therefore sufficient to constitute penetration for the purposes of the definition of rape[1]. However no inference of a lack of consent could be drawn from Dr Williams’ evidence.

   [1]Crimes Act 1958 s 35

1. The Crown's submission was that the jury would be able to infer a lack of consent to sexual penetration from the life threatening injuries which the complainant suffered and from the fact that she had no lower underclothes on when she was found.

1. That submission assumes that the sexual penetration occurred immediately before, contemporaneously with or even perhaps after the savage beating to which the complainant was undoubtedly subjected.  The fact is that there is no evidence as to when the sexual penetration referred to by Dr Williams occurred. It may, within the available evidence, quite easily have occurred before the witness, Cliff, left the house at about 3.00am, at which time the complainant was unharmed or apparently so.  If so, it may have been rape or it may not have been.  There is no basis upon which a rational inference of guilt of this element of the offence could be reached beyond reasonable doubt, excluding all reasonable inferences consistent with innocence.

1. Viewing the Crown case at its highest and applying the test laid down by the High Court in Doney v R[2] I am of the opinion that there is no case of rape to go to the jury and the jury will be directed to acquit the accused on that count.

   [2](1990) 171 CLR 207