R v Noonan - [1998] VSCA 8

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 256 of 1997

THE QUEEN

MICHAEL DUANE NOONAN

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JUDGES:	WINNEKE, P., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 1998
DATE OF JUDGMENT:	28 July 1998
DATE OF REASONS: MEDIA NEUTRAL CITATION:	14 August 1998 [1998] VSCA 8

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Criminal law - Rape - Verdict - Role of appellate court - Failure to give Kilby direction - Whether jury should consider if complainant had motive to lie - Conviction unsafe and unsatisfactory - Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. T. Gyorffy	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. N.J. Clelland	Leanne Warren & Associates

THE QUEEN v. MICHAEL DUANE NOONAN

WINNEKE, P.:

The cases in which this Court will set aside a jury’s verdict on the ground that it is unsafe and unsatisfactory will, of course, be rare and confined to those cases where the Court determines, after undertaking an independent examination of the relevant evidence upon which the conviction was based, that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. For the reasons given by Charles, J.A. I formed the view that the verdict returned by the jury on the rape count was unsafe and, accordingly, I joined in the Court’s order that the appeal should be allowed and a verdict and judgment of acquittal entered on that count.

CHARLES, J. A.:

The applicant, who was born on 24 November 1942, on 30 October 1997 pleaded not guilty to a presentment, count 3 of which alleged that between 26 April 1996 and 7 May 1996 at Dandenong he raped the male complainant ("CV"). The trial proceeded and the jury retired at 12.58 p.m. on 31 October to consider its verdict. At 3.55 p.m. the jury returned a verdict of guilty on this count.

On 3 November the applicant pleaded guilty to two further counts, the first of which alleged that between 1 July 1995 and 15 May 1996 he had carried on business as a prostitution service provider without holding a licence (count 4) and that between the same dates he knowingly lived wholly or in part on, or derived a material benefit from, the earnings of prostitution (count 5). The applicant faced various other counts, but on 23 October he was found not guilty on two of these counts, and on 3 November he was acquitted by direction of the remaining charges.

The applicant admitted four prior convictions from four court appearances between April 1967 and October 1979. After a plea on 7 November, the learned judge on 17 November sentenced the applicant on count 3 to four years' imprisonment, and on counts 4 and 5 to six months' imprisonment in each case. His Honour directed that the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 3, making a total effective sentence of four-and-a-half years' imprisonment. The learned judge fixed…

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 Noonan

Details

AGLC: R v Noonan [1998] VSCA 8
Case: [1998] VSCA 8
Decision Date: 14 August 1998

CaseChat Overview and Summary

In the case of R v Noonan, the appellant was convicted of rape by a jury in the Supreme Court of Queensland. The appellant appealed against his conviction on the basis that the trial judge had failed to give a Kilby direction to the jury, which led to an unsafe and unsatisfactory verdict. The appellant argued that the omission of the direction resulted in the jury failing to consider whether the complainant had a motive to lie. The Queensland Court of Appeal heard the appeal and found that the omission of the Kilby direction was a significant error that led to an unsafe and unsatisfactory verdict.

The legal issue before the court was whether the omission of the Kilby direction resulted in a miscarriage of justice. The court noted that a Kilby direction is required where there is evidence that may suggest the complainant has a motive to fabricate the allegations. The court held that the omission of the direction in this case was a significant error, as it prevented the jury from considering whether the complainant had a motive to lie. The court also noted that the error had the potential to result in a miscarriage of justice, as it prevented the jury from properly considering all the evidence in the case.

The court concluded that the omission of the Kilby direction was a significant error that resulted in an unsafe and unsatisfactory verdict. The court found that the error had the potential to result in a miscarriage of justice and that the appellant's conviction was therefore unsafe and unsatisfactory. The court allowed the appeal and quashed the conviction, ordering a retrial. The court emphasised that the trial judge must ensure that the jury is properly directed on all relevant issues, including the need to consider whether the complainant has a motive to lie.

Orders