R v Richardson

[2009] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 215 of 2007

THE QUEEN

v

JASON PETER RICHARDSON

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JUDGES:	MAXWELL P, BUCHANAN and VINCENT JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2009
DATE OF JUDGMENT:	3 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 4

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Criminal law – Rape – Evidence of offender’s reputation for violence – Omission of balancing evidence – Failure of trial judge to direct the jury as to the proper use of the evidence – Miscarriage of justice – Convictions quashed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis with Mr C T Carr	Slades & Parsons

BUCHANAN JA (for the Court):

1. After a trial in the County Court, the applicant was convicted on one count of indecent assault and one count of rape.  Subsequently he was sentenced to be imprisoned for a term of one month on the count of indecent assault and for a term of five-and-a-half years on the count of rape.  The sentences were to be served concurrently.  The sentencing judge fixed a term of three-and-a-half years' imprisonment before the applicant was to be eligible for parole.

1. The applicant has sought leave to appeal against his conviction.  In our opinion, the trial miscarried.  We would set aside the convictions and order that the applicant be re-tried. 

1. The principal witness for the prosecution was the complainant.  After drinking at an hotel, the applicant and a friend arrived at the house of the complainant.  The applicant and the complainant knew each other because the complainant had purchased marijuana from the applicant on several occasions.  The complainant gave evidence that the applicant said that he wanted to talk to somebody because he had split up with his girlfriend.  The applicant asked to speak to the complainant privately and they left the applicant's friend in the lounge room.  The applicant and the complainant walked down the hallway, and the applicant kissed the complainant.  She said she pulled her head back and said, 'No, I don't want this.'  The applicant asked to speak to the complainant in her bedroom.  They went into the bedroom and sat on the bed.  The applicant kissed the complainant and again she said, 'No,' and pulled her head back.  The applicant forced the complainant on to the bed.  She was wearing underpants and a dressing gown.  The applicant pulled down his shorts, ripped off the complainant's underpants and lay on top of her.  He kissed her on the lips and on the neck.  Despite her protests, the applicant penetrated her vagina with his penis.  Shortly afterwards the police arrived, for the complainant had previously telephoned the father of her child and told him that the applicant was coming to visit her.  The police spoke to the complainant, who said that everything was fine.  The friend of the applicant who was present made a statement to the police in which he denied that the applicant had been in the bedroom alone with the complainant.

1. At the outset of the trial, the prosecutor foreshadowed that he wished to lead evidence from the complainant that the applicant had the reputation of being part of the mafia of Tasmania in Glenorchy, and that she had seen a youth with a black eye who told her that the applicant had hit him with a barbell.  Similarly, the prosecution foreshadowed leading evidence from the applicant's friend that he was in fear of the applicant because 'he's always going on about people he has hurt and the Glenorchy boys'.  The prosecutor said that he proposed to balance the evidence by leading evidence from the informant that he had made enquiries in Tasmania about the existence of the so-called gang of which the applicant was said to have been a member, and that there was no evidence to found the allegation. 

1. The trial judge ruled that the prosecutor could lead the evidence which he had adumbrated, for it was relevant to explain why the complainant had not initially complained and why the friend had made a statement exculpating the applicant.  His Honour added:

I approve also of the prosecutor's intention to call evidence that there is no foundation in truth for the belief, as attempting, as best might be done, to remove any prejudice which the evidence creates.

1. Unfortunately, at the trial the prosecutor did not lead any evidence that there was no foundation for the reputation of violence ascribed to the applicant.  In our opinion, this omission made the evidence of his violent reputation unbalanced.  We are also of the view that the applicant was unfairly prejudiced by the failure of the trial judge to give directions to the jury that the only use which they could make of the evidence of the applicant's reputation was to explain the failure of the complainant to complain and the applicant's friend's false statements to the police.  The jury should have been clearly instructed that they were not to use the evidence to reach the conclusion that the applicant was a violent man or on that account was likely to have committed the offence with which he was charged. 

1. Accordingly, in our opinion, the trial miscarried. The Crown conceded as much, quite properly.   The application for leave to appeal against conviction should be granted, the appeal heard instanter and allowed, and the conviction set aside.  We would order that the appellant be re-tried.

MAXWELL P: 

1. The orders of the Court will be as follows:

   1.        Application for leave to appeal against conviction granted.

   2.The appeal be treated as instituted and heard instanter and allowed.

   3.The convictions recorded in the court below be set aside and the sentences imposed be quashed.

   4.We direct that a new trial be had.

   We grant to the applicant a certificate under the Appeal Costs Act.

1. In conclusion, I would record on behalf of the Court our concern that so much time should have elapsed since the notification by the Crown of its unequivocal concession that appellable error had occurred and that no reliance would be placed on the proviso.  It will, of course, be understood by those who advise the applicant that the end of November and December are times of acute pressure in the Court of Appeal and on judges in particular.  But we are concerned that, where inevitably a conviction is to be set aside as it has just been, there should be the absolute minimum delay before that is effected by the Court.  We will look to ensure that that objective is pursued.

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