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…
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- AGLC
- R v Rogers [2008] VSCA 125
- Case
- [2008] VSCA 125
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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