R v Munday - [2003] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 214 of 2002

THE QUEEN
	v.
DAVID CHRISTOPHER MUNDAY

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JUDGES:	ORMISTON, CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 September 2003
DATE OF JUDGMENT:	26 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 189

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CRIMINAL LAW – Rape – Evidence of “recent complaint” – Sufficiency of directions as to complaint immediately after rape – Whether judge should describe reason for rule – Need to explain limited basis for reception of complaint evidence – Consent – Onus of proof – Issue as to belief – Proper directions to jury in light of ss.36 and 37 of Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, QC, DPP Mr C.W. Beale	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, QC Mr J.P. Dickinson	Slades & Parsons Solicitors

ORMISTON, J.A.:

The applicant for leave to appeal against conviction was convicted in the County Court on two counts of rape, one resulting from digital penetration and the other resulting from penile penetration, each occurring early in the morning on New Year’s Day 2001. The applicant was sentenced to a term of 3 years’ imprisonment on each count, to be served concurrently, and the judge directed the applicant serve a period of 18 months before becoming eligible for parole. There was and is no dispute that the applicant penetrated his victim in the manner alleged but the applicant has at all times maintained that the victim consented to intercourse. The grounds described in the amended notice of appeal relate to essentially only two issues, first the judge’s directions as to complaint and secondly his directions as to consent.

In the circumstances it is necessary to outline the facts giving rise to the application. The victim visited the suburban home of two friends on New Year’s Eve 2000, taking with her her two young children and arriving during the afternoon. She brought with her some cans of beer which she drank throughout the afternoon, night and early morning and also smoked marijuana at various stages of the visit, in the course of what might be described as a modest New Year’s Eve party. As a result of a telephone call the applicant also came to that house but arrived some time after midnight. He had also been drinking and he joined the three others in talking and drinking for some time into the early morning. The victim barely knew the applicant, having perhaps met him once before, and there was, at least in the view of one of the hosts, though denied by the victim, a little flirtation on her part during the course of the night’s fitful celebrations.

At about 3.30 a.m. the victim “flaked”, as the applicant described it, and fell asleep on or at the end of two small mattresses on the living room floor on which her two children aged 2 and 4 were already sleeping. It is also likely that…

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.

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Details

AGLC: R v Munday [2003] VSCA 189
Case: [2003] VSCA 189
Decision Date: 26 November 2003

CaseChat Overview and Summary

In the case of R v Munday, the appellant faced a trial in the Supreme Court of Victoria for the crime of rape. The appellant was charged with raping a woman at a house party, an offence he denied. The prosecution's case relied heavily on the complainant's immediate complaint to friends at the party, which was subsequently reported to the police. The appellant argued that the trial judge failed to adequately direct the jury on the significance of the recent complaint and the evidential rule that allows such complaints to be admitted.

The court was tasked with determining whether the trial judge provided sufficient directions to the jury regarding the legal basis for admitting the complainant's recent complaint as evidence. The appellant contended that the judge did not sufficiently explain the limited grounds upon which such evidence could be received, nor did the judge detail the reasons underpinning this evidentiary rule. Additionally, the court had to consider whether the judge properly instructed the jury on the onus of proof in relation to the appellant's belief in consent, particularly in light of sections 36 and 37 of the Crimes Act 1958.

The court found that the trial judge had indeed failed to sufficiently explain the limited basis for admitting the recent complaint evidence. The judge did not describe the rationale behind the reception of such evidence, which is crucial for the jury to understand the weight to be given to it. Furthermore, the judge did not properly direct the jury on the onus of proof concerning the appellant's belief in consent. The court held that the judge's directions were insufficient and that this misdirection could have influenced the jury's verdict. As a result, the conviction was quashed and a new trial ordered.

Orders