R v Short
[2005] VSCA 28
•22 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 162 of 2004
| THE QUEEN |
| v. |
| FRANK HARRY SHORT |
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JUDGES: | CALLAWAY and BATT, JJ.A. and WILLIAMS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 February 2005 | |
DATE OF JUDGMENT: | 22 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 28 | |
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Criminal law – Application for leave to appeal against conviction – Concession by Crown that new trial should be directed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr O.P. Holdenson, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr M.J. Croucher | Galbally & O'Bryan |
CALLAWAY, J.A.:
The applicant pleaded not guilty in the County Court to a presentment containing 15 counts. He was acquitted by direction on counts 6, 10 and 13, and the jury found him not guilty on counts 1 and 2. He was convicted on two counts of aggravated burglary (counts 3 and 8), one count of common assault (count 4), six counts of rape (counts 5, 7, 9, 12, 14 and 15) and one count of intentionally causing injury (count 11). After hearing a plea for leniency on his behalf, the learned trial judge sentenced the applicant to a total effective sentence of seven years' imprisonment with a non-parole period of five years. He seeks leave to appeal against both conviction and sentence.
There are twelve grounds in the full statement of grounds of appeal against conviction filed pursuant to r. 2.09 of the Supreme Court (Criminal Procedure) Rules 1998. That rule came into force last year and applies to these applications. Those grounds read:
"1.The learned trial judge erred in that his directions tended to reverse the onus of proof of matters in issue (Trial at 11; Charge at 220-224).
2.The learned trial judge erred in his directions in respect of the applicant's account in his record of interview vis-à-vis the complainant's account in evidence; and in particular he erred:
(a)in directing to the effect that the jury should approach their task by 'balancing' the accounts of the complainant and the applicant (Charge at 239-240);
(b)in that he breached s.399(3) of the Crimes Act 1958 by referring to the fact that the applicant did not give evidence on oath (Charge at 239).
3.The learned trial judge erred in that he failed sufficiently or at all to summarize the evidence, relate the evidence to the applicable law, summarize counsel's addresses and put the defence case (see, e.g., Charge at 232-240).
4.The learned trial judge erred in his directions on aggravated burglary (Charge at 222-225); and in particular he erred:
(a)in failing to refer to the evidence of Robert Tuffs and the applicant's record of interview in relation to count 3 (Trial at 139-142; ROI at Qs 121 & 173-177);
(b)in effectively withdrawing the element of trespass and its associated mens rea by saying that he did not think that the latter was really in issue (Charge at 223) and that the only element in issue was the intent to rape at the time of entry (Charge at 225);
(c)in directing that the element of aggravation was supplied by an intention to rape (Charge at 225);
(d)in failing to define or explain the term 'reckless' (Charge at 222);
(e)in failing sufficiently and accurately to direct on the elements of burglary and aggravated burglary.
5.The learned trial judge erred in his directions on rape (Charge at 219-222); and in particular he erred:
(a)in failing to refer to important aspects of the evidence touching upon consent and mens rea - for example, the complainant's evidence of the applicant's desistance when she indicated that she did not wish to have anal sex (Trial at 32) and the evidence of Robert Tuffs (Trial at 139-142);
(b)in failing to tailor the standard directions on consent and mens rea to meet the particular circumstances of the present case, including the unusual sexual relationship.
6.The learned trial judge erred in failing to give the jury an Edwards direction in relation to the suggestion by police in the record of interview that the applicant had hidden the ring he was wearing on the night of 30th December 2002 in order to hide evidence of his assault upon the complainant (ROI at Qs 416-424, 511-519, 521-524 & 532).
7.The verdicts on counts 5 and 7 are uncertain and afflicted with latent duplicity in that the complainant gave evidence of the occurrence of three separate rapes on 23rd September 2002 and there was neither a satisfactory election by the prosecution nor an adequate isolation of the relevant incidents by the judge (Trial at 30-35; ROI at Q218; Trial at 190-191, 195-196 & 200-203; Charge at 233-234).
8.The learned trial judge erred in his directions on intentionally causing injury (Charge at 226-227); and in particular he erred:
(a) in failing to direct sufficiently on accident;
(b)in failing to direct that the act causing injury must be conscious, voluntary and deliberate;
(c)in failing to leave recklessly causing injury as an alternative verdict in relation to count 11.
9.The learned trial judge erred in his directions on common assault (Charge at 225-226); and in particular he erred:
(a)in failing to direct sufficiently or at all on the elements of self-defence;
(b)in giving the jury the impression that self-defence could not apply in circumstances where '[s]he was whacking him, so he whacked her back' (Charge at 225).
10.The learned trial judge erred in failing to give any or a sufficient Kilby warning in relation to counts 1-7, and that which was said on the topic of the absence of timely complaint was couched in the form of a comment rather than a direction of law and was overwhelmed by directions on evidence of recent complaint and explanations for failing to complain (Charge at 212-213, 215-218 & 232).
11. An aggregate of errors caused the trial to miscarry.
12.The verdicts on counts 3, 4, 5 and 7 are unsafe and unsatisfactory in that no reasonable jury properly instructed could have been satisfied beyond reasonable doubt of the applicant's guilt on those counts."
Mr Holdenson has informed us that the Director of Public Prosecutions considers that ground 3 lays a sufficient foundation for the possibility of there having been a miscarriage of justice as to warrant a re-trial on all counts upon which the applicant was convicted. Mr Croucher does not oppose that disposition.
It is unlikely, in practice, that the matters of which complaint is made in the grounds other than ground 3 will arise at a re-trial, particularly as the full statement will serve to alert counsel and the judge, well in advance of the trial, to matters that should be clarified and directions that may need to be given. For example, a consciousness of guilt direction should be given if it is part of the Crown case that the applicant hid the ring he was wearing in order to hide evidence of his alleged assault upon the complainant. If that is not part of the Crown case, but the relevant questions and answers in the record of interview are admitted in evidence, defence counsel will have to consider whether it is wise to seek a direction warning the jury against a chain of reasoning that may not otherwise occur to them. That is enough to illustrate how much the present grounds will be affected by the course of evidence and submissions at the re-trial.
I propose that the Court say no more about either application, except that we have considered ground 3 for ourselves and, with respect to the learned trial judge, accept the correctness of the Crown's concession.
BATT, J.A.:
I agree.
WILLIAMS, A.J.A.:
I agree.
CALLAWAY, J.A.:
The formal orders of the Court will be as follows:
The application for leave to appeal against conviction is granted.
The appeal is treated as instituted and heard instanter and is allowed.
The convictions sustained by the appellant in the court below are quashed and the sentences passed thereon are set aside.
The Court directs a new trial to be had on counts 3, 4, 5, 7, 8, 9, 11, 12, 14 and 15.
The appellant is remanded in custody pending the new trial. That will not prevent an application for bail in the Practice Court.
The Court grants to the appellant an indemnity certificate pursuant to s.14 of the Appeal Costs Act 1998 and directs that there be included in that certificate any additional costs that the appellant will pay, or will be ordered to pay, as a consequence of the order for a new trial.
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