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R v Demiri

R v Demiri

Case [2006] VSCA 64 17 March 2006

Criminal Liability

Rape

Failure to Summarize Defence Arguments

Complaint Evidence

Rule in Browne v Dunne

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 69 of 2005

THE QUEEN
	v.
SERMET DEMIRI

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JUDGES:	MAXWELL, P, BUCHANAN, JA and REDLICH, AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2006
DATE OF JUDGMENT:	17 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 64	1^ST revision 17 March 2006

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Criminal law – Conviction – Rape – Whether charge unbalanced – Failure to summarise defence arguments.

Rule in Browne v Dunne - Rule of professional practice – Counsel referring to obligation in jury presence – Explanation for rule given to jury – Direction appropriate.

Complaint evidence – Failure to direct jury as to its impermissible use – Need to distinguish from evidence of distress.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C Quin	Mr S Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr J Kaufman with Mr D G Just	Basil Nuredini

MAXWELL, P:

I have had the advantage of reading in draft the reasons for judgment of Redlich, AJA. I agree that, for the reasons which his Honour gives, the application for leave to appeal should be allowed, the conviction quashed and a new trial ordered.

BUCHANAN, JA.:

I would grant the application for leave to appeal against conviction for the reasons stated by Redlich, AJA.

REDLICH, AJA.:

On 21 January 2005, on the fifth day of a trial in the County Court at Melbourne, the applicant, who was born on 29 December 1976, was found guilty by a jury of two counts of rape. At the trial it was disputed that the applicant penetrated the complainant on the occasion alleged in count 1, and the applicant maintained that the complainant had consented to intercourse. The applicant seeks leave to appeal against those convictions. On 1 March 2005, the applicant was sentenced to five years' jail on each count, with one year of the sentence imposed in respect of count 2 made cumulative upon the sentence imposed on count 1, making a total effective sentence of six years' imprisonment. The applicant was ordered to serve a minimum of four years before becoming eligible for parole.

A brief summary of the facts giving rise to the application is necessary.

On the evening of 1 March, the applicant, together with friends and relatives, assembled at the applicant's parents' home to celebrate his forthcoming marriage the following Saturday, 8 March. According to the applicant's record of interview, he consumed 8 to 10 scotches and coke at home. He described his condition as "a little bit tipsy". Some time after midnight the applicant and some of his friends left his parents' home and went to the Brass Monkey Nightclub at Fountain Gate shopping centre complex at Narre Warren.

The complainant attended the Brass Monkey nightclub on the night of 1 March 2003 at about 9.45 pm. Over the course of the night she consumed 10 bourbons mixed with coke. At some time during the night, she met the applicant whilst inside the nightclub but has no recollection…

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 [2006] VSCA 64
Case: [2006] VSCA 64
Decision Date: 17 March 2006

CaseChat Overview and Summary

The case of R v Demiri involved the defendant who was convicted of rape. The primary issue before the court was whether the charge was unbalanced and if the failure to summarise the defence arguments constituted a miscarriage of justice. Additionally, the court examined whether the failure to direct the jury as to the impermissible use of the complainant's evidence warranted a new trial. The case was heard in the court of criminal appeal.

The court was required to determine if the charge against the defendant was balanced, considering the prosecution's obligation to present a fair case. This involved assessing whether the failure to summarise the defence arguments led to a miscarriage of justice. Furthermore, the court had to consider if the trial judge's omission to direct the jury about the impermissible use of the complainant's evidence warranted a new trial, distinguishing it from evidence of distress. The court also evaluated whether the explanation of the rule in Browne v Dunne to the jury and the direction given was appropriate.

In addressing these issues, the court found that the charge was balanced and the failure to summarise the defence arguments did not amount to a miscarriage of justice. The court held that the trial judge appropriately explained the rule in Browne v Dunne to the jury and provided a suitable direction. The court determined that the failure to direct the jury about the impermissible use of the complainant's evidence did not necessitate a new trial, as it was distinguishable from evidence of distress. Consequently, the conviction was upheld.

The final orders of the court were that the appeal was dismissed, and the conviction for rape was upheld. The court found no grounds for a new trial or a correction of the charge. The defendant's conviction remained in place.

Orders