R v Chalas
[2009] VSCA 215
•14 September 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 668 of 2008
| THE QUEEN |
| v |
| JAMES CHALAS |
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JUDGES: | NETTLE and REDLICH JJA and LASRY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 September 2009 | |
DATE OF JUDGMENT: | 14 September 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 215 | |
JUDGMENT APPEALED FROM: | R v Chalas, Unreported 12 May 2008, County Court of Victoria (Judge Ross) | |
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CRIMINAL LAW – Conviction – Indecent assault – Whether judge erred in directions as to element of consent or awareness of lack of consent – Appeal allowed – Verdict of acquittal entered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G T Cannon | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr D A Dann | Nigel A De Kretser |
NETTLE JA:
Following a trial before the County Court at Melbourne on a presentment of five counts of rape (counts 1, 2, 3, 5 and 7), one count of attempted rape (count 4) and one count of indecent assault (count 6), the applicant was found guilty of the count of indecent assault and not guilty of all other counts. Thereafter he was sentenced to four month’s imprisonment to be served by way of an intensive correction order. He now applies for leave to appeal against conviction and sentence.
The facts
The applicant was charged and tried together with a co-accused, Leo Bragilevsky. The alleged offences were said to have occurred in the early hours of Sunday 12 December 2004 at the Bailey Reserve, Boundary Road, East Bentleigh. The Crown case was that the complainant met the applicant and Bragilevsky at The Loft nightclub on the evening of 11 December 2004. Whilst at the nightclub, the complainant had consumed four glasses of champagne and a further four sips of champagne over a five to six hour period. During the night, the complainant danced with both men as well as with others. At one stage the applicant leant over and kissed the complainant, but she continued to dance with the applicant and Bragilevsky. Later, the complainant and her sister decided to leave the nightclub. The complainant was feeling a little tipsy and tired after having worked extended night shifts for some evenings before. Contrary, however, to the advice of her sister, the complainant then took leave of her sister and entered a maxi-taxicab with the applicant and Bragilevsky, and four other male passengers.
The complainant said that the cab travelled in the opposite direction to that which she had intended. She became agitated and intimated to others present that she wished to leave the cab. She was then verbally abused by Bragilevsky. She said that Bragilevsky told the cab driver that she was with them, and that the cab driver continued in accordance with Bragilevsky's directions. After approximately thirty to forty-five minutes, the cab arrived at East Boundary Road, East Bentleigh. The complainant there contributed some $10 to the cost of the fare. Then she, the applicant, Bragilevsky and the four other passengers left the vehicle and walked up a gravel road and crossed a football oval. The complainant said that she believed she was going to someone's home in order to smoke a joint.
After they had walked some distance and the other passengers had moved ahead, the complainant, the applicant and Bragilevsky approached a park bench. According to the complainant, Bragilevsky there grabbed her by the left arm and pulled her on to the bench. She gave evidence that Bragilevsky demanded that she remove her underwear, which was a dark purple G-string, and verbally abused her. She complied with his directions, removing her underpants and high-heeled shoes. She said that Bragilevsky then pulled her forward while she was on the park bench, opened her legs and had vaginal sex with her. She said that she told Bragilevsky to stop, and that she was married, to which Bragilevsky made more abusive responses. According to the complainant's evidence, that penetration lasted for approximately ten minutes: (count 1).[1]
[1]The applicant was charged with acting in concert or aiding and abetting Bragilevsky.
The complainant said that Bragilevsky next demanded that she have vaginal sex with the applicant, who was standing some eight metres away, and that the applicant then proceeded to have vaginal sex with the complainant, during which time she again protested that she was married: (count 2). The complainant said that after that Bragilevsky came forward, removed his pants and grabbed her by her hair, forcing her to have oral sex with him, which continued for approximately ten to twelve minutes: (count 3). The complainant said that Bragilevsky then placed his fist into her vagina, during which time she screamed out in agony and kicked at his genitals, causing him to become angry and to threaten her: (count 4). The complainant said that Bragilevsky then instructed her to turn around and place both hands on the park bench back rest, which she did, whereupon he lifted her skirt and anally penetrated her with his penis, whilst continuing verbally to abuse her: (count 5). The complainant said that, after she had been anally penetrated by Bragilevsky, he forced her to turn around once more and then masturbated and ejaculated on her face: (count 6). Following that he grabbed her by the hair and forced her to have oral sex with the applicant, which extended over a period of approximately six to ten minutes: (count 7).
The complainant said that she complained to her sister on the following morning when she was at her parent’s place, and complained to her father on the following Monday morning, whereafter police investigations began.
Grounds of appeal
The applicant's complete statement of grounds sets out four grounds of appeal.
Ground 1
Counsel for the applicant submitted that the verdict of guilty returned on the count of indecent assault cannot logically or reasonably be reconciled with the verdicts of not guilty which were returned on all other counts, and thus that the verdict on that count is unreasonable.
Ground 2
Ground 2 was abandoned.
Grounds 3 and 4
Under cover of grounds 3 and 4, it was contended that, inasmuch as the applicant and Bragilevsky were acquitted on all other counts, and that the act of indecent assault was committed by Bragilevsky, it would be dangerous to conclude that the applicant by his mere presence either engaged in common purpose with Bragilevsky for the purpose of the indecent assault, or that the applicant in any way aided, abetted, counselled or procured the indecent assault.
Ground 5
After the filing of the complete statement of grounds and a change of counsel, the applicant applied for leave to add a further ground of appeal, that:
The learned trial judge had erred by failing to direct the jury as to the elements of consent/awareness of lack of consent in respect to the count of indecent assault.
In the view which I take of this matter, it is necessary only to deal with that proposed ground of appeal and it should be upheld.
It is clear that the judge did not direct the jury that it was necessary for the Crown to establish that the act complained of was not justified by consent, and that the applicant was aware that the complainant was not consenting or that she might not be consenting. The prosecutor even took exception to his Honour’s failure to do so and the judge reacted by saying, in effect, that, although he had not done so, the jury would understand that it was necessary for the Crown to negative consent.
Arguably the jury would have understood that it was necessary for the Crown to negative consent. As counsel for the respondent submitted, the prosecutor opened the case for the Crown by outlining the elements of the offences and in the course of that process she told the jury that it was necessary for the Crown to establish that the applicant was aware that the complainant was not consenting or might not be consenting. The defence counsels’ responses to the Crown opening, although brief, seem also to suggest that the only issue was one of consent in respect of all counts. The cross-examination of the complainant, although cryptic, was similarly to the effect that, generally speaking, she had consented to all of the alleged acts of sexual activity except alleged attempted rape, which was denied. We have not been supplied with a transcript of counsel's final addresses, but one may suppose that the question of consent was agitated again in the course of final argument.
On the other hand, as counsel for the applicant pointed out, when one looks to the judge's charge to the jury, there appears to be a distinct break between the directions which his Honour gave to the jury on the alleged offences of rape, where his Honour made clear that it was necessary for the Crown to negative consent and to establish that the applicant either knew that the complainant was not consenting or might not be consenting, and the directions which his Honour later gave separately with respect to the alleged offence of indecent assault, wherein his Honour told the jury that, in effect, there were two elements of the offence to be established: that the act complained of had been committed, and that they adjudged it to be indecent by reference to appropriate standards.
Thus, as counsel for the applicant put it, in the way in which the judge outlined those elements, without reference to consent, and then went on to outline the Crown's case in respect of that offence or alleged offence, without also outlining that it was the defence position that the conduct had been consented to, there was a distinct danger of the jury concluding that it was unnecessary for the Crown to negative consent or to establish that the applicant knew that the complainant was not consenting or might not be consenting.
In my view, the judge's failure to direct on consent and the applicant’s knowledge or belief as to the complainant’s absence of consent is a defect which cannot be overlooked. His Honour was bound to outline each of the elements of the offence to the jury so as to make clear to them what the Crown needed to establish and, because of his Honour’s failure to do so, it is impossible to exclude the risk that the jury proceeded in ignorance or at least a state of confusion.
Counsel for the respondent submitted that we should conclude that the jury acquitted on the counts of rape and attempted rape and convicted on the count of indecent assault because, although not satisfied beyond reasonable doubt of an absence of consent in relation to the counts of rape, they were satisfied beyond reasonable doubt that the complainant would not have consented to having ejaculate cast in her face. I accept that is not unlikely. But, in the absence of proper directions, it remains that the jury could have convicted on the count of indecent assault because they considered that it was not necessary for the Crown to negative consent or to prove that the applicant knew the complainant was not consenting or might not be consenting. And that possibility is to some extent supported by the fact that the judge at one point in his charge specifically directed the jury that they were to decide the case in accordance with the directions which he gave them. It follows, in my view, that the proviso cannot be applied.
As a result, I would allow the application for leave to amend and the application for leave to appeal, and treat the appeal as instituted and heard instanter and allow the appeal.
If that view commends itself to the other members of the Court, a question arises as to the orders which should follow. Obviously the conviction should be quashed, as should be the sentence passed thereon. Ordinarily, it would be appropriate to direct that a new trial be had. But as counsel for the respondent properly and fairly conceded, a re-trial on count 6 alone would be impractical and likely to result in injustice. The jury would have to hear evidence in relation to the other offences, of which the applicant now stands acquitted, and, despite such directions as might be given that he is entitled to the full benefit of his acquittal on those counts, the jury could be prejudiced against him as a result of what they heard about those other activities.
There is also the difficulty that the complainant would in effect be asked to give evidence of the acts which preceded and followed the alleged offence of indecent assault as if she had consented or at least that there was reasonable doubt as to whether the applicant knew or believed that she might not be consenting to the acts of sexual penetration. But it is plain from the evidence which she gave on the last occasion that she believed that she did not consent and that the applicant well knew that was so.
It follows, I think, in the particular circumstances of this case, that a judgment and verdict of acquittal should be entered.
REDLICH JA:
I agree, for the reasons given by my brother Nettle, that leave should be granted to add the further ground of appeal and that the appeal should be allowed and a verdict of acquittal entered as a consequence of allowing the appeal on the new ground.
In refusing the Crown's submission following his charge that he give the jury a direction as to the element of consent on the count of indecent assault, which he had omitted to do, the trial judge considered that the jury would have understood that the Crown was required to prove an absence of consent and the accompanying mens rea of the applicant on that count. His Honour no doubt relied upon the fact that the defence to this and the counts of rape and attempted rape on the presentment was that the complainant had consented to each of these acts. But the fact that the jury was likely to have appreciated that consent was a matter that the Crown must prove, did not relieve the trial judge of the responsibility of instructing the jury that it was an element of the offence. The failure to do so constituted a fundamental irregularity in the trial which would ordinarily require that the conviction be quashed. Although it is not necessary to show that an omission of this character was productive of error, one view of the verdict on this count is that the jury did not appreciate that the absence of consent was an element of the offence. The conviction must be quashed.
I further agree that in the circumstances a verdict of acquittal must be entered, as it would be unjust to require the applicant to stand trial as there is a real risk that the evidence on a re-trial would controvert the verdicts of acquittal to which the applicant is entitled to have the full benefit.
LASRY AJA:
I also agree that leave to appeal should be granted, the appeal should be allowed, and that a verdict of acquittal should be entered.
NETTLE JA:
The orders of the Court will be as follows:
Leave is granted to the applicant to amend the notice of appeal by adding thereto the proposed ground 5, which is set out in the affidavit in support of the application for leave to amend.
The application for leave to appeal is allowed.
The appeal is treated as instituted and heard instanter and is allowed.
The conviction on count 6 is quashed and the sentence passed below thereon is set aside and it is directed that a judgment and verdict of acquittal be entered on count 6.We grant an appeal costs certificate to the appellant.
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