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 | 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…
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- R v Yusuf [2005] VSCA 69
- Case
- [2005] VSCA 69
- Decision Date
CaseChat Overview and Summary
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.
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