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R v Cordell

R v Cordell

Case [2009] VSCA 128 9 June 2009

Conviction

Rape

Common Assault

Inconsistent Verdicts

Trial Procedure

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 954 of 2007

THE QUEEN
	v
EDWARD PAUL CORDELL

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JUDGES:	NETTLE and DODDS-STREETON JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2009
DATE OF JUDGMENT:	9 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 128
JUDGMENT APPEALED FROM:	R v Cordell (County Court of Victoria, Judge Strong, 21 December 2007)

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CRIMINAL LAW – Conviction – Rape and common assault at common law – Whether inconsistent verdicts on offending comprising the same ‘transaction’ – Where complainant’s evidence of multiple offences imprecise – Count particularised by reference to specific dates but trial judge described it as the ‘first occasion’ – Whether verdicts unsafe and unsatisfactory – S v R (1989) 168 CLR 266; [1989] HCA 66 distinguished – Whether a ‘Liberato’ direction required – Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 – R v BDX [2009] VSCA 28 applied – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D C Hallowes	Robert Stary and Associates

NETTLE JA:

I agree with Dodds-Streeton JA.

DODDS-STREETON JA:

The applicant, Edward Cordell, seeks leave to appeal against his conviction on three counts of rape and two counts of common assault of the complainant, ‘BM’.

The Crown alleged that the applicant (then the complainant’s domestic partner) struck her on the way to and throughout the couple’s two week stay with the applicant’s relatives at Seaspray, Victoria, in July and August 2006 and ultimately subjected her to successive oral, vaginal and anal rape after driving her to an isolated place at night. The Crown alleged that after the rapes, the applicant threatened to cut the complainant’s throat and, two days later, struck her in their bedroom and then punched and knocked her over in the kitchen.

The applicant participated in an interview with police in relation to the allegations. He admitted punching the complainant in the kitchen, but denied that he had otherwise assaulted or threatened her. The applicant did not deny the acts of sexual penetration alleged to constitute the rapes, but asserted that they were consensual.

At trial, the complainant and a number of other witnesses, including relatives of the applicant and the medical practitioner who examined her after the alleged offending, gave evidence and were cross-examined. The applicant did not give evidence.

By Presentment No U01942197 filed on 24 October 2007, the following counts were preferred against the applicant:

Count 1

Assault of the victim on 31 July 2006

Count 2

Assault of the victim on 2 August 2006

Count 3

Recklessly cause injury to the victim between 1 August and 5 August.

Count 3A

Possession of drug of dependence (cannabis) on 11 August 2006

Count 4

Rape (penile penetration of complainant’s mouth) on 11 August 2006

Count 5

Rape (penile penetration of complainant’s vagina) on 11 August 2006

Count 6

Rape (penile penetration…

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 Cordell

Details

AGLC: R v Cordell [2009] VSCA 128
Case: [2009] VSCA 128
Decision Date: 9 June 2009

CaseChat Overview and Summary

In the Supreme Court of Victoria, Cordell was convicted of one count of rape and one count of common assault at common law. The complainant, who was known to the defendant, alleged that Cordell had raped and assaulted her on multiple occasions over a period of time. Cordell appealed against his convictions on the basis that the verdicts were inconsistent and unsafe and unsatisfactory. The appeal centred on whether the offences were part of the same ‘transaction’ and whether the trial judge should have given a ‘Liberato’ direction to the jury.

The court was required to determine whether the verdicts were inconsistent, and if so, whether they were unsafe and unsatisfactory. The court considered whether the offences were part of the same ‘transaction’ and whether the trial judge should have given a ‘Liberato’ direction to the jury. The court also considered the relevant authorities on the issue, including S v R and Liberato v The Queen. The court held that the verdicts were not inconsistent as the complainant’s evidence of the multiple offences was imprecise, and the count particularised by reference to specific dates did not necessarily mean that it was the ‘first occasion’.

The court found that the verdicts were not inconsistent, and therefore, the appeal was dismissed. The court held that the trial judge did not need to give a ‘Liberato’ direction to the jury as the offences were not part of the same ‘transaction’. The court held that the verdicts were safe and satisfactory, and the appeal against conviction was dismissed.

The court made no orders as the appeal against conviction was dismissed.

Orders