R v Mackaway - [2005] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 280 of 2004

THE QUEEN
	v.
DYLAN COREY MACKAWAY

---

JUDGES:	MAXWELL, A.C.J., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2005
DATE OF JUDGMENT:	16 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 229

---

Criminal law – Rape and recklessly causing injury – Applicant convicted on one count of rape but acquitted on other count and on count of recklessly causing injury – Whether verdicts inconsistent – Whether directions, in addition to conventional directions, were necessary in relation to evidence of proximate complaint – Whether invitation in prosecutor’s final address to engage in impermissible reasoning was adequately dealt with by judge’s directions – Significance of trial counsel’s not taking exception and not seeking discharge of jury – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Brown	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Victoria Legal Aid

MAXWELL, A.C.J.:

I agree with Callaway, J.A. that the application should be dismissed for the reasons which his Honour gives.

CALLAWAY, J.A.:

The applicant, who is now aged 23, was presented in the County Court on two counts of rape (counts 1 and 2) and one count of recklessly causing injury (count 3). After a trial occupying eight days the jury found him not guilty on counts 1 and 3 but guilty on count 2. The learned judge heard a plea for leniency and sentenced the applicant to four-and-a-half years' imprisonment with a non-parole period of two years. He seeks leave to appeal against conviction only.

The grounds of appeal in the full statement filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998 are:

“1.The verdict of guilty on count 2 (rape) is unsafe and unsatisfactory; and in particular:
(a)the verdict on count 2 is inconsistent with the verdicts of not guilty on counts 1 and 3 (rape and recklessly causing injury); and
(b) in view of the evidence pertaining to each count and the way the trial was conducted, no reasonable jury could find the applicant guilty on count 2 having found him not guilty on counts 1 and 3.

2.The learned trial judge erred in his directions on evidence of complaint; and in particular he erred:
(a)in failing to direct to the effect that, unless the jury could exclude the reasonable possibility that the alleged complaints related to something other than rape (such as a physical assault or an attempted rape), they could not use the evidence as evidence of recent complaint;
(b)in failing to direct that, if the foregoing were their view, that would be a reason for doubting the truth and accuracy of the complainant’s evidence of rape;

(c)in failing to direct that evidence of recent complaint was neither corroborative nor confirmatory of the complainant’s evidence.

…
4.The trial miscarried by reason of the learned prosecutor’s argument in his final address to the effect that the complainant's account in evidence could be regarded…

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 Mackaway

Details

AGLC: R v Mackaway [2005] VSCA 229
Case: [2005] VSCA 229
Decision Date: 16 September 2005

CaseChat Overview and Summary

In the case of R v Mackaway, the applicant was convicted of one count of rape but acquitted on other counts, including a count of recklessly causing injury. The applicant appealed against his conviction, arguing that the verdicts were inconsistent and that the trial judge should have provided additional directions to the jury regarding the evidence of a proximate complaint. The applicant also contended that the trial judge failed to adequately address an invitation to the jury in the prosecutor's final address to engage in impermissible reasoning.

The court examined whether the verdicts were inconsistent and whether additional directions were required in relation to the evidence of the proximate complaint. The court considered whether the trial judge should have provided further directions to the jury, in addition to the conventional directions, in relation to the evidence of the proximate complaint. The court also considered whether the trial judge's directions adequately addressed the invitation to the jury to engage in impermissible reasoning.

The court held that the verdicts were not inconsistent, and that there were no grounds for ordering a discharge of the jury. The court found that the trial judge provided adequate directions to the jury regarding the evidence of the proximate complaint. The court also held that the trial judge's directions adequately addressed the invitation to the jury to engage in impermissible reasoning, and that the trial counsel's failure to object or seek a discharge of the jury meant that the applicant had not preserved any error in relation to these matters. The application for special leave to appeal was dismissed.

The court made no orders in relation to the application for special leave to appeal.

Orders