R v Vishnu Vijay - [2013] ACTSC 21

HUMAN RIGHTS ACT

R v VISHNU VIJAY
[2013] ACTSC 21 (22 February 2013)

CRIMINAL LAW – Offences against the person – Commit act of indecency – s 60(1) Crimes Act 1900 (ACT)

CRIMINAL LAW – Offences against the person – Sexual intercourse without consent – s 54(1) Crimes Act 1900 (ACT)

CRIMINAL LAW – Recklessness – Recklessness as to consent – s 20 Criminal Code 2002 (ACT)

Human Rights Act 2004 (ACT), s 21
Supreme Court Act 1933 (ACT), s 68
Crimes Act 1900 (ACT), Pt 3 s 50, 67,
Criminal Code 2002 (ACT), s 20
Evidence (Miscellaneous Provisions) Act (1991) (ACT), s 40

R v Crabbe (1985) 156 CLR 464
R v Kitchener (1993) 29 NSWLR 696, 697

No. SCC 27 of 2011

Judge: Higgins CJ
Supreme Court of the ACT

Date: 22 February 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 27 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

R

v

VISHNU VIJAY

ORDER

Judge:  Higgins CJ
Date:  22 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

There be a verdict of not guilty in respect of each count of the indictment.

This was a trial by judge alone, the election having been duly made, which commenced 11 September 2012.

The accused, Vishnu Vijay, entered pleas of not guilty to five counts arising out of an alleged incident on 22 October 2010. They are that he

... committed an act of indecency upon [complainant] without her consent, and was reckless as to whether she was consenting.
... engaged in sexual intercourse with [complainant] without her consent and was reckless as to whether she was consenting.
... IN THE ALTERNATIVE ... committed an act of indecency upon [complainant] without her consent and was reckless as to whether she was consenting.
... committed an act of indecency upon [complainant] without her consent and was reckless as to whether she was consenting.
... committed an act of indecency upon [complainant] without her consent and was reckless as to whether she was consenting.

As the trial is by judge alone I must perform the function of the jury as well as that of trial judge.

Both common law and the Human Rights Act 2004 (ACT) guarantee the right of an accused person to be tried “by a competent, independent and impartial court or tribunal after a fair and public hearing” (see s 21(1)).

That includes the proposition that the onus of proof of each element of each charge rests upon the prosecution. The accused has no obligation to prove anything. If any element of any offence is to be regarded as proved, the standard of proof is that it be so established beyond a reasonable doubt. The accused is entitled, in that process, to a presumption of innocence. That means not only that the prosecution must establish guilt but that any question relevant to proof of guilt arising on the evidence must be resolved in the accused’s favour unless an adverse inference is established beyond a reasonable doubt.

The…

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 Vishnu Vijay

Details

AGLC: R v Vishnu Vijay [2013] ACTSC 21
Case: [2013] ACTSC 21
Decision Date

CaseChat Overview and Summary

Vishnu Vijay was charged with five counts of sexual offences arising out of an incident on 22 October 2010. The complainant alleged that the accused committed an act of indecency upon her without her consent and was reckless as to whether she was consenting. The trial by judge alone in the Supreme Court of the Australian Capital Territory commenced on 11 September 2012. The court was required to determine the credibility of the complainant’s evidence and whether the Crown had proved each element of the offences beyond a reasonable doubt.

The court noted the separate elements of each count on the indictment which the Crown was obliged to prove. The complainant alleged that the accused engaged in acts of a sexually indecent nature under the pretext that they were remedial massage intended to relieve unpleasant symptoms she suffered from. The court considered the definition of recklessness and whether the accused was at least reckless as to whether there was consent to the acts complained of. The court heard the complainant’s evidence, the accused’s evidence, and the evidence of the complainant’s mother and a friend. The medical report and forensic biology report yielded nothing supportive of the allegations. The accused denied the allegations of sexual assault.

The court found that the accused’s evidence might be true, whether or not it is less probably so than the complainant’s evidence. There was a reasonable doubt as to whether the events occurred as the complainant asserted. The court concluded that the Crown had not proved each element of the offences beyond a reasonable doubt. The court ordered a verdict of not guilty in respect of each count of the indictment.

Orders