R v Lubke - [2007] SASC 343

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LUBKE
[2007] SASC 343
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice David)
26 September 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Appeal against conviction - appellant tried by jury on one count of attempted rape and one count of indecent assault - both counts related to the same complainant and occurred contemporaneously - jury found the appellant guilty of attempted rape but not guilty of indecent assault - whether verdicts inconsistent - whether guilty verdict unsafe and unsatisfactory - whether jury should have entertained a reasonable doubt - held: no basis on which to interfere with the verdicts.
Criminal Law Consolidation Act 1935 s 48, s 56, s 85B(1), s 270A; Summary Offences Act 1953 s 62(1)(a)(i), referred to.
Chamberlain v The Queen (No 2) (1984) 153 CLR 618; Chidiac v The Queen (1991) 171 CLR 432; Hayes v The Queen (1973) 47 ALJR 603; M v The Queen (1994) 181 CLR 487, applied.
Jones v The Queen (1999) 191 CLR 439, considered.

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
Trial Judge ruled that subpoenaed documents disclosed communications protected by public interest immunity, pursuant to ss 67E and 67F of the Evidence Act 1929 - whether trial Judge erred in ruling documents to be protected communications in the absence of an application to that effect having been made by the institution from which the documents were subpoenaed - whether trial Judge erred in inspecting the documents to determine whether they contained protected communications - whether defence counsel should have been permitted to inspect the documents - held: documents properly ruled to be protected communications.
Evidence Act 1929 s 67D, s 67E, s 67F, referred to.
Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 345, applied.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Whether trial Judge erred in directing the jury in terms of recent invention - held: directions appropriate having regard to the summing-up as a whole
Held: appeal dismissed.

R v LUBKE
[2007] SASC 343
Court of Criminal Appeal: Sulan, White and David JJ

SULAN J: The appellant, Wayne Scott Lubke, was charged with attempted rape and indecent assault of SF, a 19-year-old female, on 14 November 2004. He was also charged and pleaded guilty to offences of causing a bushfire, contrary to s 85B(1) of the Criminal Law Consolidation Act 1935, and making a false report to…

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 Lubke

Details

AGLC: R v Lubke [2007] SASC 343
Case: [2007] SASC 343
Decision Date: 26 September 2007

CaseChat Overview and Summary

The appeal in R v Lubke concerns the conviction of the appellant for attempted rape of SF, a 19-year-old woman who was a participant in the Teen Challenge Rehabilitation Program. The jury acquitted the appellant of a charge of indecent assault, leading to the appellant's contention that the verdicts were inconsistent and that the guilty verdict was unsafe and unsatisfactory. The appeal was dismissed by the court, which found no basis to interfere with the jury's verdicts.

The central legal issues in this case were whether the verdicts were inconsistent and whether the guilty verdict was unsafe and unsatisfactory. The court had to determine whether the jury should have entertained a reasonable doubt about the appellant's guilt. The appeal hinged on the jury's ability to distinguish between the charges of attempted rape and indecent assault, based on the evidence presented.

The court found that the evidence at trial, including the testimonies of SF, her friend Ms Virgo, and Ms Virgo's father, supported the jury's conclusion that the appellant attempted to rape SF. The court detailed the events leading up to the offence, including SF's decision to travel to the Teen Challenge Church and her interactions with the appellant and Ms Virgo. The court noted the inconsistencies between the testimonies of SF and Ms Virgo regarding the location where Ms Virgo was picked up, but found that these inconsistencies did not undermine the overall credibility of the evidence. The court further found that the appellant's evidence, which contradicted SF's account, did not provide a basis for overturning the jury's verdict. The court concluded that the jury had properly considered the evidence and reached a verdict that was both reasonable and consistent with the law.

The court upheld the conviction, finding no grounds for appeal. The verdict of the jury was affirmed, and the appellant's appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals against the conviction. The appellant contends that the verdict of the jury is unsafe and unsatisfactory. He further submits that the verdicts are inconsistent. It is therefore necessary to consider the evidence at trial in detail.The evidence at trial SF was 19 years of age at the time that the offence was committed. She attended the Teen Challenge Church on Waymouth Street in Adelaide on Sundays. She had previously participated in the Teen Challenge Rehabilitation Program for approximately six months because she was addicted to paint sniffing. She lived at Para Hills and she travelled to the city each Sunday by bus. SF told the jury that she had been paint sniffing since she was 15 years of age. Despite completing the rehabilitation program she continued to sniff paint. On 14 November 2004, SF and a friend, Ms Virgo, attended the Teen Challenge Church. They arrived at approximately 10:00 am. SF had been sniffing paint the previous night and she sniffed paint again that morning as they were travelling to the church by bus. Whilst she and Ms Virgo were in the church, the appellant, whom she had never met, came into the church. They spoke and eventually the two young women and the appellant went outside to smoke a cigarette. Whilst they were outside, it began raining. The appellant asked SF if she would like to go to his car so that they would not have to stand in the rain. The three walked to his car. SF sat in the front passenger seat and Ms Virgo sat in the back. Earlier, SF had told the appellant that she had a problem with paint sniffing. When they were in the car, she sniffed paint from a container she carried in her backpack. At about 11:30 am, SF told the appellant that her friend, Ms Virgo, had to leave because her father was picking her up from Waymouth Street. The appellant said he would drive them back to Waymouth Street. The appellant stopped at the location where Ms Virgo’s father was to pick her up and Ms Virgo alighted. SF said to Ms Virgo that she would stay in the car and find her own way home later. Ms Virgo confirmed the evidence of SF about the events leading up to SF, the appellant and Ms Virgo leaving the church and going to the appellant’s car. She said that she was to meet her father at the corner of Waymouth and King William Streets and she walked from the car to that point where she was met by her father at about 11:30 am. In that respect, her evidence differed from that of SF and that of the appellant. Nothing significant flows from that inconsistency. Ms Virgo’s father gave evidence that he had arranged to collect his daughter from King William Street, at the corner of Waymouth Street, at 11:30 am. He arrived at about 11.30 am. His daughter was alone and waiting for him. SF told the Court that, after dropping off Ms Virgo, she asked the appellant to take her back to the church, but he said he needed to do a few things before taking her back. According to SF, she asked him on a number of occasions to take her back to the church, but he did not. He kept driving. SF received a call on her mobile telephone from her boyfriend, who had arrived at the church. When she told him that she was in a car, her boyfriend became angry. She told the appellant that she thought her boyfriend might have been cheating on her. The appellant said she deserved something better. SF repeated her request that the appellant take her back to the church. He again refused, saying that he still needed to do a few things. This evidence was contradicted by the appellant, whose evidence I will relate later in these reasons.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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