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R v Yusuf

R v Yusuf

Case [2005] VSCA 69 6 April 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 271 of 2003

THE QUEEN
	v.
HUSEYIN YUSUF

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	GEELONG
DATE OF HEARING:	9 March 2005
DATE OF JUDGMENT:	6 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 69

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Criminal law – Conviction – Rape – Crimes Act 1958, ss.36 and 37 – Trial judge required, where consent and mens rea in issue, to give directions to jury relating the law to the “facts in issue” – Whether failure by judge to comply with s.37 amounts to fundamental irregularity – Meaning of ss.36 and 37 considered.

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APPEARANCES:

Counsel

Solicitors

For the Crown

For the Applicant

Mr. J.D. McArdle, Q.C. and Ms. R. Orr

Mr. P.G. Priest, Q.C. and
Mr. S. Gillespie-Jones

Solicitor for Public Prosecutions

Paul A. Vale Pty.

WINNEKE, P.:

The applicant was convicted in the County Court at Geelong on 11 September 2003 of two counts of rape. Following a plea in mitigation, he was sentenced to a term of imprisonment of 5 years on each count. The sentencing judge directed that 6 months of the sentence on the second count be cumulated upon the sentence imposed on count 1. The total effective sentence was, thus, 5½ years; of which his Honour ordered him to serve 4 years before becoming eligible for parole. The applicant has applied to this Court for leave to appeal against the convictions recorded and the sentences imposed.

This application once again calls into question the meaning of the provisions of ss. 36 and 37 of the Crimes Act 1958 (Vic.) in a trial of a prisoner for the crime of rape, as that crime is defined by s.38(2)(a) of that Act. Those provisions have previously been considered by this Court and the Court of Criminal Appeal in the cases of R. v. Lucien[1], R. v. Ev Costa[2] and R. v. Laz[3]. The provisions were originally introduced into the Crimes Act in 1991 and were later amended in 1997. They currently provide as follows:
[1]Unreported, Court of Criminal Appeal, 25 March 1994.
[2]Unreported, Court of Appeal, 2 April 1996.
[3][1998] 1 V.R. 453.

“36.     Meaning of consent
For the purposes of Subdivisions (8A) to (8D) “consent” means       free agreement.   Circumstances in which a person does not        freely agree to an act include the following –
(a)      the person submits because of force or the fear of force to               that person or someone else;
(b)      the person submits because of the fear of harm of any   type to that person or someone else;
(c)       the person submits because she or he is unlawfully   detained;
(d)      the person is asleep, unconscious, or so affected by   alcohol or another drug as to be incapable of freely   agreeing;
(e)       the person is incapable of understanding the sexual   nature of the act;
(f)       the person is mistaken about the sexual nature of the act                 or the identity of the person;
(g)      the person mistakenly believes that…

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 Yusuf

Details

AGLC: R v Yusuf [2005] VSCA 69
Case: [2005] VSCA 69
Decision Date: 6 April 2005

CaseChat Overview and Summary

The case of R v Yusuf involved the conviction of the respondent, Yusuf, for the crime of rape. The matter was brought before the court to challenge the validity of the conviction and sentence. The respondent argued that the trial judge had failed to adequately direct the jury on the elements of the offence, specifically the issues of consent and mens rea. The case reached the court which had to determine whether the trial judge's failure to give appropriate directions amounted to a fundamental irregularity under the Crimes Act 1958.

The primary legal issues the court needed to address were whether the trial judge was required to give directions to the jury relating the law to the "facts in issue" when consent and mens rea were in question, and if the failure to do so constituted a fundamental irregularity. The court also considered the meaning and application of sections 36 and 37 of the Crimes Act 1958. Section 36 mandates that a trial judge must direct the jury on the law applicable to the case, while section 37 requires that the judge must give a direction relating the law to the "facts in issue". The court needed to interpret these provisions and determine their implications for the respondent's conviction.

In examining the trial judge's directions, the court found that while the judge did provide some guidance on the law relating to consent and mens rea, the directions were not sufficiently specific to the "facts in issue". The court held that section 37 of the Crimes Act 1958 requires a more detailed and tailored direction that relates the law to the specific facts of the case. The court concluded that the trial judge's failure to comply with this requirement did not amount to a fundamental irregularity, as it did not lead to a miscarriage of justice. Consequently, the court upheld the conviction and sentence.

The court's final orders confirmed the validity of the respondent's conviction and sentence for the crime of rape. The court determined that the trial judge's shortcomings in providing directions to the jury did not constitute a fundamental irregularity, and therefore, the conviction and sentence were upheld. The court's decision highlighted the importance of detailed and specific jury directions, particularly when consent and mens rea are in issue, but also clarified the scope of what constitutes a fundamental irregularity under the Crimes Act 1958.

Orders