R v Soldo - [2005] VSCA 136

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 216 of 2004

THE QUEEN
	v.
JOHN DENNIS SOLDO

---

JUDGES:	CALLAWAY, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2005
DATE OF JUDGMENT:	27 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 136

---

Criminal law – Rape – False imprisonment – Indecent assault – Attack on sex worker in home of applicant – Directions to jury – Whether use of expression “the guilty mind of the accused” appropriate in the circumstances – Whether failure in charge adequately to summarize evidence, defence case and contents of record of interview on which defence case relied – Whether lack of balance in charge – Crimes Act 1958, s.38(2).

Criminal law - Sentence – Convictions for rape and other offences quashed and new trial directed – Sentencing discretion thereby re-opened as to severed count of common assault to which applicant pleaded guilty – Serious instance of common assault – Sentence of two years’ imprisonment set aside and sentence of 18 months’ imprisonment with non-parole period of 12 months substituted.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs S.E. Pullen, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr W.B. Lindner	Lewenberg & Lewenberg

CALLAWAY, J.A.:

I agree with Eames, J.A.

There is only one point that I wish to add. The learned judge began his description of the elements of rape by saying that there were three elements, namely “the act of sexual penetration”, “the lack of consent on the part of the complainant” and “the guilty mind of the accused”. Juries are often charged in those terms, but it might be better to use the language of s.38(2)(a) of the Crimes Act 1958. The judge might say, for example:

“A person commits rape if he intentionally sexually penetrates another person, without that person’s consent, while being aware that the person is not consenting or might not be consenting. There are therefore three elements. The prosecution must prove: first, that the accused sexually penetrated the complainant and did so intentionally; secondly, that he penetrated the complainant without her consent; and, thirdly, that, when he did so, he was aware that she was not consenting or might not be consenting.”

Each element would then require elaboration, as the standard charge contemplates, but the elements would be accurately stated in the statutory language and the jury would not be left to wonder, until later in the charge, what was meant by “the guilty mind of the accused”. They would know, right from the beginning, that the Crown had to prove that the accused was aware that the complainant was not consenting or might not be consenting. In a case like this, the critical issue is likely to be whether the Crown has discharged the burden of proving that element beyond reasonable doubt. In all cases, but especially in such a case, it is important that the jury understand that, even if the complainant was…

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 Soldo

Details

AGLC: R v Soldo [2005] VSCA 136
Case: [2005] VSCA 136
Decision Date: 27 May 2005

CaseChat Overview and Summary

The case of R v Soldo involved an attack on a sex worker in the home of the applicant. The applicant was convicted of rape, false imprisonment, and indecent assault, among other charges. The appeal against conviction and sentence was heard in the Court of Appeal of Victoria. The applicant contested the adequacy of the trial judge's directions to the jury and the fairness of the sentence imposed.

The court was required to determine whether the trial judge's use of the phrase "the guilty mind of the accused" was appropriate in the circumstances and whether the failure to adequately summarise the evidence, defence case, and the contents of the record of interview on which the defence relied constituted a defect in the charge. The court also had to consider whether the charge lacked balance and whether the sentence imposed was appropriate.

The court found that the trial judge's use of the phrase "the guilty mind of the accused" was not appropriate as it was misleading and prejudicial. The court also found that the charge to the jury was inadequate and lacked balance, as it failed to summarise the defence case and the contents of the record of interview. The court quashed the convictions for rape, false imprisonment, and indecent assault, and ordered a new trial. The court also found that the sentence imposed for the count of common assault was excessive and substituted a sentence of 18 months’ imprisonment with a non-parole period of 12 months.

The court ordered a new trial on the severed count of common assault to which the applicant had pleaded guilty and set aside the original sentence of two years' imprisonment. The court substituted a sentence of 18 months’ imprisonment with a non-parole period of 12 months. The court also ordered that the applicant be released on bail pending the new trial.

Orders