R v N J M - [2001] VSCA 235

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 20 of 2000

THE QUEEN
	v.
N.J.M.

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JUDGES:	CHARLES, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2001
DATE OF JUDGMENT:	20 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 235

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CRIMINAL LAW – Rape - Verdict – Duty of judge to put defence case to jury – Failure to take exception not fatal – Complainant giving contradictory evidence – Unsafe and unsatisfactory – Verdicts of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D.A. Dann	McLennans

CHARLES, J.A.:

I have had the advantage of reading the judgments in this matter prepared by the other members of the Court. I gratefully adopt the statement of the facts prepared by Buchanan, J.A.

I should say at once that I agree with Chernov, J.A. that the application for leave to appeal against conviction must succeed because the trial judge’s charge, with respect, made only slight reference to the defence case, which was consent; and, accordingly, a miscarriage of justice was brought about by her Honour’s failure to give the jury a balanced charge. Notwithstanding that no exception was taken by the experienced defence counsel, I agree that there was in this case a clear breach of the basic safeguard explained by Smith, J. in R. v. Wilkes & Briant[1] that the trial judge must put the defence case fairly to the jury, a breach which I think in the circumstances brought with it the “serious risk of a miscarriage of justice”. The only question remaining is whether a retrial should be ordered or this Court should now enter verdicts of acquittal.
[1][1965] V.R. 475 at 479.

I agree that on the evidence-in-chief of the complainant the jury would have been entitled to be satisfied beyond reasonable doubt of the guilt of the applicant on both charges of which he was later convicted. When, however, the complainant was cross-examined, she made, as Buchanan, J.A. has said, a number of startling admissions which amounted, in my view, to a complete recantation of the inculpatory statements she had made previously. Much of this evidence has been set out by Buchanan, J.A. The questions of the cross-examiner do not appear to have been forcefully put, nor was the cross-examination a particularly lengthy one. A matter of some significance, however, in my view, is that the complainant’s answers by no means followed a pattern of merely assenting to any proposition put to her by the cross-examiner. For example to the question “But he didn’t lay you on the couch, did he?”, the complainant’s answer was “No, he told me to get on the couch”. To the question “You wanted to make the story seem more serious, didn’t you, that is why you said you had been pushed onto the couch?”, she replied “Um, about pushing on the couch, he didn’t push me on the couch at all.” 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 N J M

Details

AGLC: R v N J M [2001] VSCA 235
Case: [2001] VSCA 235
Decision Date: 20 December 2001

CaseChat Overview and Summary

The case of R v N J M involved the respondent, N J M, who was charged with the rape of a complainant. The matter was heard in the Supreme Court of Victoria, where N J M faced serious allegations of sexual assault. The court was tasked with determining whether the evidence presented was sufficient to support a guilty verdict or whether the accused should be acquitted.

The legal issues before the court included whether the trial judge had correctly explained the defence case to the jury and whether the contradictory evidence provided by the complainant rendered the verdicts of guilt unsafe and unsatisfactory. The court needed to assess whether the jury's acquittal of N J M was justified given the evidence presented. Additionally, the court examined whether the trial judge's failure to take exception to the jury's verdict was a significant oversight.

The court found that the trial judge had indeed failed to accurately convey the defence case to the jury, but this oversight did not preclude the appeal from being successful. The key consideration was the contradictory nature of the complainant's testimony, which the court found to create significant doubt about the reliability of the evidence. The trial judge's failure to take exception to the jury's verdict did not impact the appeal's outcome, as the primary focus was on the safety and satisfaction of the jury's acquittal. Ultimately, the court concluded that the verdicts of acquittal were justified, and the appeal was dismissed.

Orders