R v Vella - [2008] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 50 of 2007

THE QUEEN

DAVID ROBERT VELLA

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JUDGES:	BUCHANAN, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 February 2008
DATE OF JUDGMENT:	27 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 28

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Criminal law - Rape and intentionally causing serious injury - Withdrawal of complaint - Direction by trial judge not required - Application pursuant to s 37A of the Evidence Act 1958 refused - Unanimity of jurors not required as to all Crown evidence.

Criminal law - Sentencing - Delay - Not a mitigating factor when due to fear caused by the offender.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs M M Williams SC with Mr C B Boyce	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	Leanne Warren and Assocs

BUCHANAN JA:

After a trial in the County Court, the applicant, who is now 43 years old, was found guilty of one count of intentionally causing serious injury and one count of rape. The jury returned a verdict of not guilty to a count of false imprisonment. At the direction of the trial judge, the jury returned a verdict of not guilty to a count of burglary with intent to assault.

The applicant was subsequently sentenced to be imprisoned for a term of seven years and six months on the count of rape and for a term of three years and six months on the count of intentionally causing serious injury. One year and six months of the latter sentence were cumulated on the former sentence, producing a total effective sentence of nine years' imprisonment. A term of six years was fixed before the applicant was to be eligible for parole.

The applicant seeks leave to appeal against the convictions and sentence.

The person who was alleged to have been the victim of the crimes was a woman who had lived with the applicant in an apparently volatile relationship for between three and four years. The complainant decided to end the relationship. The parties separated but continued to see one another, and occasionally had sexual intercourse.

On 7 November 2003, the complainant arrived at her house on Phillip Island at about midnight, to find the applicant there. In her evidence the complainant said that she told the applicant that if he was going to stay the night he would have to sleep in the spare room. While she was making up a bed for the applicant, he attacked her. The complainant said in her evidence that the applicant grabbed her by the neck and arms, threw her into the walls of the house, grabbed her by the neck and sent her flying into the wall, seated on a chair. The applicant was yelling and screaming. He hit the complainant with the back of his hand, poured a bottle of beer over her head, and forced another bottle of beer between her lips, making her drink it. The applicant…

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 Vella

Details

AGLC: R v Vella [2008] VSCA 28
Case: [2008] VSCA 28
Decision Date: 27 February 2008

CaseChat Overview and Summary

The case of R v Vella was heard by the Supreme Court of Victoria. The accused, Vella, faced charges related to the alleged rape and intentional infliction of serious injury on a woman. The dispute centred around the admissibility of certain evidence and the impact of the delay in bringing the case to trial on the sentencing.

The court was required to determine whether the trial judge was obligated to direct the jury that they did not need to be unanimous regarding all Crown evidence. Additionally, the court had to decide whether the delay in bringing the case to trial should be considered a mitigating factor in sentencing, particularly in light of the fear caused by the offender.

In its reasoning, the court held that the trial judge was not required to provide such a direction to the jury, as it was not necessary for the jurors to be unanimous on all aspects of the Crown evidence. The court also ruled that the delay in bringing the case to trial should not be considered a mitigating factor in sentencing, particularly when the delay was caused by the fear of the offender. The application for a ruling under section 37A of the Evidence Act 1958 was thus refused.

The final orders of the court were that the application for a direction to the jury was dismissed and that the delay in bringing the case to trial would not be considered a mitigating factor in sentencing. This decision ensures that the principles of justice are upheld and that the rights of the accused are protected, while also considering the impact of the delay on the victim.

Orders