R v Yusuf (No 2) - [2006] VSCA 117

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 200 of 2005

THE QUEEN

HUSEYIN YUSUF (NO. 2)

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JUDGES:	CHERNOV, VINCENT and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 May 2006
DATE OF JUDGMENT:	17 May 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 117	1^st Revision 1 June 2006

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Criminal Law – Conviction – Rape – Charge to jury – Directions as to proof beyond reasonable doubt – Where preference for complainant’s evidence – Whether directions as to applicant’s evidence sufficient – Whether charge balanced – Directions as to consciousness of guilt – Application to appeal against conviction refused – Crimes Act 1958, s.37.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.W. Beale	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
The Applicant in person

CHERNOV, J.A.:

The applicant, Huseyin Yusuf, was convicted in the County Court at Geelong on 16 June 2005 of two counts of rape committed on 10 April 2001.[1] After a plea in mitigation, the applicant was sentenced on 21 June 2005 to a total effective sentence of five years and six months' imprisonment, with a non-parole period of four years. His Honour also ordered that the applicant be registered pursuant to s.11 and Schedule 3 of the Sex Offenders Registration Act 2004. The applicant has applied to this Court for leave to appeal against the convictions. Although the applicant was represented at his trial by counsel and although the Full Grounds upon which he seeks to rely were settled by counsel, as was the outline of submissions, the applicant appeared before us unrepresented and conducted the application in person. As I will mention later, although the applicant's knowledge of the English language is limited, he is capable of being understood and, before us, he was assisted by an interpreter who was duly sworn. As will become apparent, the applicant's oral argument before us was not confined to the Full Grounds or the outline of submissions. In fact, much of the oral submissions was not directed to the claims in those documents. Nevertheless, I shall deal with the substance of Mr Yusuf's oral submissions as well as the contentions in the written outline.
[1]The applicant had previously been convicted of the same offences in the County Court at Geelong on 11 September 2003, but this conviction was quashed by this Court and a new trial ordered on 6 April 2005 – R. v. Yusuf (2005) 11 V.R. 492 ("Yusuf No.1").

Before considering these matters, however, it is necessary to describe briefly the relevant circumstances of the offending. At the time of the offending on 10 April 2001, the applicant was aged 38 years and the complainant, who had come to Australia from Vietnam with her parents, was aged approximately 20 years. They had not known each other prior to this incident. In the early afternoon of 10 April 2001, each was waiting at the Footscray railway station to catch a train to Geelong. The complainant was travelling from her…

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 (No 2)

Details

AGLC: R v Yusuf (No 2) [2006] VSCA 117
Case: [2006] VSCA 117
Decision Date: 17 May 2006

CaseChat Overview and Summary

The case of R v Yusuf (No 2) involved the respondent appealing against his conviction for rape. The case was heard in the Court of Appeal. The primary focus of the appeal was the adequacy of the directions given to the jury regarding the standard of proof beyond reasonable doubt and the assessment of the applicant's evidence. The respondent argued that the trial judge's directions favoured the complainant's evidence, potentially leading to an unfair trial.

The court needed to determine whether the directions provided to the jury were sufficient to ensure a fair trial. This involved examining the trial judge's instructions on the standard of proof and whether the directions appropriately balanced the evidence presented by both parties. Additionally, the court considered the trial judge's instructions on the concept of consciousness of guilt and whether these instructions were adequate. The court had to decide if the trial judge's directions were appropriate and whether they met the legal standards required for a fair trial.

The Court of Appeal found that the trial judge's directions were appropriate and did not favour the complainant's evidence to an extent that would prejudice the respondent's case. The court determined that the directions given met the necessary legal standards and were sufficient to ensure a fair trial. The appeal was dismissed, and the conviction was upheld. The court concluded that the trial judge's handling of the evidence and the instructions to the jury were adequate and did not constitute a miscarriage of justice.

Orders