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R v Rogers

R v Rogers

Case [2008] VSCA 125 14 July 2008

Criminal Liability

Admissibility of Evidence

Rape

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 345 of 2007

THE QUEEN
	v
JASON JAMES ROGERS

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JUDGES:	BUCHANAN, NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 July 2008
DATE OF JUDGMENT:	14 July 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 125

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Criminal law – Rape – Verdict not unsafe or unsatisfactory notwithstanding attacked upon credit of the complainant – Evidence of distress admissible – Whether trial judge required to instruct jury that evidence of distress was of little weight – Trial judge adequately related the law to the facts.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C F Thomson	Galbally & O'Bryan

BUCHANAN JA:

After a trial in the County Court, the applicant was convicted on a charge of rape and sentenced to be imprisoned for a term of two years, with a minimum term of six months' imprisonment.

At the time the offence was alleged to have been committed, the complainant was 16 years of age. She was living in a one-bedroom unit in Noble Park, as were the applicant and others. The complainant returned to the unit on a summer evening to find the applicant, who was then 30 years old, and another occupant of the unit, both of whom had been drinking and smoking marijuana. Some hours later, the complainant, who had taken sleeping tablets, went to sleep in the bed in the unit's bedroom. She said at the trial of the applicant that she woke up to discover the applicant beside her. She was not wearing her jeans or underpants and felt wetness on the top of her legs, in the vagina and on the bed. The Crown contended, and the jury must have accepted, that the applicant had sexual intercourse with the complainant while she was asleep.

The principal Crown witness was the complainant. At the conclusion of the Crown case, the applicant stood mute and called no evidence. He had told the police that he had had sexual intercourse with the complainant. He did not state in clear terms that it was consensual intercourse. The general tenor of his answers suggested that he was unsure whether the complainant was or was not consenting.

The applicant seeks leave to appeal against his conviction. The first ground of the application is that the verdict is unsafe and unsatisfactory. The applicant relied upon two matters which were said to undermine the complainant's credibility to such an extent that it could not sustain the verdict.

The first was that in the course of cross-examination the complainant denied that she had 'done anything to suggest her sexual interest in' the applicant, whereas other persons present in the unit gave evidence that earlier in the evening the complainant gyrated on the laps of the applicant and two other men, and, when asked why she had let the applicant 'dry root her from behind', she said, 'He enjoyed it and…

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 Rogers

Details

AGLC: R v Rogers [2008] VSCA 125
Case: [2008] VSCA 125
Decision Date: 14 July 2008

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Rogers, the respondent appealed a conviction for rape. The trial was conducted in the Supreme Court of Victoria, which included a consideration of the admissibility of distress evidence and the proper instruction to the jury regarding its weight. The appellant argued that the trial judge failed to adequately instruct the jury about the limited relevance of the complainant's distress, impacting the safety and satisfaction of the verdict.

The primary legal issue before the court was whether the trial judge was obligated to instruct the jury that the evidence of the complainant's distress held little weight and was not determinative of her credibility. The court needed to determine if the judge's instructions were sufficient to ensure the jury considered the evidence appropriately and if the verdict was not unsafe or unsatisfactory despite being based solely on the complainant's testimony.

The court found that the trial judge had adequately related the law to the facts of the case. The judge provided comprehensive instructions to the jury regarding the assessment of witness credibility and the appropriate weight to assign to distress evidence. The court concluded that the jury was sufficiently guided to consider the evidence in a balanced manner. Consequently, the court held that the verdict was not unsafe or unsatisfactory, even though it relied on the complainant's testimony. The appeal was dismissed, and the conviction was upheld.

Orders