R v Demiri - [2007] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 333 of 2006
THE QUEEN	v
SERMET DEMIRI

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JUDGES:	VINCENT, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2007
DATE OF JUDGMENT:	23 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 170	1^st Revision 30 August 2007

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CRIMINAL LAW – Conviction – Rape – Discharge of jury in course of trial – Witness referring to accused as having been or gone “inside” – Words difficult to hear and spoken over by prosecutor – Words not transcribed – Jury given copy of transcript – Discretion of trial judge – Principles applicable – No error in exercise of discretion to refuse to discharge – Evidence – Record of interview – Answers capable of amounting to admissions – Discretion to exclude – Propriety of police interrogation – Interrogation not unduly onerous or unfair – Admissions capable of rational interpretation – No error in exercise of discretion to refuse to exclude admissions – R v Hartwick (2005) 14 VR 125; R v Pritchard [1991] 1 VR 84 referred to – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr Joseph Kaufman with Mr D G Just	David Tonkin & Associates

VINCENT JA:

I will invite Nettle JA to deliver the first judgment.

NETTLE JA:

This is an application for leave to appeal against conviction on two counts of rape committed on 2 March 2003, by penile vaginal penetration of the complainant while being aware that she was not consenting or might not be consenting.

In effect, this is the second time that the matter has come before this Court. The applicant was first put up for trial for the offences in August 2004, but the trial was aborted. Following a second trial, in January 2005, the applicant was found guilty of both offences and sentenced to a total effective sentence of six years' imprisonment, with a non-parole period of four years. Thereafter he appealed to this Court, then constituted by the President and Buchanan and Redlich JJA, on grounds that the trial judge had erred in directions concerning the rule in Brown v Dunn and evidence of recent complaint and distress.[1] The appeal was heard on 8 February 2006 and upheld, and it was ordered that a new trial be had.
[1]R v Demiri [2006] VSCA 64.

The re-trial commenced with preliminary argument on 7 August 2006 and concluded on 16 August 2006, with the jury returning a verdict of guilty on both counts. The applicant was thus convicted and on 1 November 2006 he was sentenced to a term of imprisonment of five years on each count, with one year of the sentence imposed on the second sentence to be served cumulatively on the first, making for a total effective sentence of six years, with a non-parole period of four years. It is from those convictions that the applicant now seeks…

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 Demiri

Details

AGLC: R v Demiri [2007] VSCA 170
Case: [2007] VSCA 170
Decision Date: 23 August 2007

CaseChat Overview and Summary

The appellant, Demiri, was convicted of the rape of a woman and appeals against his conviction. The appeal raises questions about the trial judge's discretion to refuse to discharge the jury and to refuse to exclude evidence from the trial. The Court of Appeal found no error in the trial judge's exercise of these discretions.

The legal issues considered by the Court of Appeal were whether the trial judge erred in his discretion to refuse to discharge the jury and whether he erred in his discretion to refuse to exclude evidence of the appellant's admissions. The Court of Appeal found that the trial judge did not err in either exercise of his discretion. The jury had heard a witness refer to the appellant having been or gone "inside" the victim, but the words were difficult to hear and were spoken over by the prosecutor. The words were not transcribed, and the jury was given a copy of the transcript without these words. The Court of Appeal found that the trial judge was entitled to consider that the words were not material and that there was no prejudice to the appellant. The Court of Appeal also found that the police interrogation of the appellant was not unduly onerous or unfair, and that the admissions were capable of a rational interpretation. The Court of Appeal referred to R v Hartwick and R v Pritchard in support of its findings.

The appeal was dismissed. The Court of Appeal found no error in the trial judge's exercise of his discretion to refuse to discharge the jury or to refuse to exclude evidence of the appellant's admissions. The conviction of the appellant was upheld.

Orders