R v Salih - [2005] VSCA 282

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 365 of 2003

THE QUEEN
	v.
TUNCER SALIH

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JUDGES:	CHERNOV and NETTLE, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 September 2005
DATE OF JUDGMENT:	2 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 282	Second Revision: 5 December 2005

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Criminal law – Rape – Directions to jury – Prior inconsistent statements – Putting the applicant's case fairly before the jury – Uncharged acts – Crimes Act 1958, s.37 – Failure by trial judge to warn about the effect on the complainant's reliability as a witness of the consumption of alcohol and marijuana.

R. v. Yusuf [2005] VSCA 69 (6 April 2005) considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.W. Beale	Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr. L.C. Carter	Koutsantoni & Associates

CHERNOV, J.A.:

I have had the benefit of reading, in draft, the comprehensive reasons for judgment of Harper, A.J.A. in this matter and the concurring reasons of Nettle, J.A. I agree with Harper, A.J.A. that, for the reasons he gives, the applicant should succeed on grounds 1 and 3, as well as on the proposed ground 5. In the circumstances, it is unnecessary to deal with the proposed ground 4 and, therefore, I would not grant leave to add it. Harper, A.J.A., however, dealt with the proposed ground and concluded that it should be rejected. In the ordinary course, given my conclusions, there would be no need for me to refer to his Honour’s consideration of this ground but, for reasons which will become apparent, it is necessary for me to deal briefly with certain aspects of them.

The applicant’s essential case under cover of proposed ground 4 was that the learned trial judge failed in his charge to relate his directions as to consent to the facts in issue as was required by s.37(1) of the Crimes Act 1958. This Court has recently dealt with the application of this provision in R. v. Yusuf[1] and neither party before us sought to challenge the correctness of the reasoning of Winneke, P. in that case, who delivered the leading judgment. Nevertheless, in the context of dealing with the proposed ground, Harper, A.J.A. undertook a lengthy analysis of this provision and of the reasoning of the learned President in relation to it and concluded that his Honour’s reasoning was flawed. Since I was a member of the Court that decided Yusuf, and since I agreed with the impugned reasons of Winneke, P. in that case, as did Charles, J.A., I have given careful consideration to Harper, A.J.A.’s analysis of the matter but, as presently advised, I remain, with respect, of the view that the learned President was plainly correct in his construction of s.37 and in his application of it to the circumstances of the case before him. That Winneke, P. was correct in this respect is made apparent, I think, when one looks at the context in…

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 Salih

Details

AGLC: R v Salih [2005] VSCA 282
Case: [2005] VSCA 282
Decision Date: 2 December 2005

CaseChat Overview and Summary

The appellant, Salih, was convicted of rape and sought leave to appeal against his conviction and sentence on various grounds, including the trial judge's directions to the jury concerning prior inconsistent statements and the failure to warn about the effect of the complainant's consumption of alcohol and marijuana on her reliability as a witness. The case was heard in the Victorian Court of Appeal.

The central legal issues before the court were whether the trial judge's directions to the jury on the prior inconsistent statements were adequate, and whether the trial judge should have warned the jury about the impact of the complainant's drug and alcohol consumption on her reliability as a witness. The court needed to determine if these errors were significant enough to warrant an appeal against the conviction and sentence.

The court held that the trial judge's directions to the jury regarding the prior inconsistent statements were insufficient. The judge failed to adequately explain the significance of these statements and their potential impact on the jury's assessment of the complainant's credibility. Furthermore, the court found that the trial judge should have warned the jury about the effects of alcohol and marijuana on the complainant's reliability, as this was crucial to the jury's understanding of her testimony. The court concluded that these errors were significant and warranted an appeal against both the conviction and the sentence.

The court allowed the appeal, quashed the conviction, and ordered a retrial. Additionally, the court set aside the sentence and ordered a re-sentencing hearing, considering the impact of the errors on the original sentencing.

Orders