R v Zilm

Case [2006] VSCA 72 5 April 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 239 of 2005

THE QUEEN
	v.
JENTER PAUL ZILM

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JUDGES:	CALLAWAY, EAMES and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2006
DATE OF ORDERS:	13 February 2006
DATE OF REASONS:	5 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 72

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Criminal law – Rape – Indecent assault – Directions to jury – Directions as to reasonableness of accused’s belief that victim was consenting – Failure to relate directions to facts in issue, especially to relate directions to accused’s account in record of interview – Failure of counsel to take exception as to adequacy of directions - Crimes Act 1958, ss.37, 38(2), 39.

Criminal law – Evidence – Lies by accused in record of interview – Prosecutor initially relies on lies as evidence of consciousness of guilt – Prosecutor subsequently relies on lies only as relevant to credibility of account in record of interview – Jury not adequately directed as to withdrawal by prosecutor of initial contention as to lies.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr G.F. Meredith	Victoria Legal Aid

CALLAWAY, J.A.:

Section 38(2)(a) of the Crimes Act 1958 contains a definition of rape. It provides that a person commits rape if he or she (1) intentionally sexually penetrates another person (2) without that person’s consent (3) while being aware that the person is not consenting or might not be consenting. The three elements[1] are therefore (1) intentional sexual penetration of another person, (2) the absence of that person’s consent and (3) awareness, on the part of the accused, that the person is not consenting or might not be consenting. As I explained in R. v. Soldo[2], those elements are not difficult to explain, using the language of the Crimes Act. It is confusing, and inappropriate, to run the first and third elements together either by saying that the third element relates to “the guilty mind of the accused” or that the Crown must prove that the accused “intended to commit the crime of rape in the sense that, at the time of sexual penetration, he realized that the complainant was not consenting or might not be consenting”.[3]
[1]Strictly speaking, intention and sexual penetration are separate elements, but a tripartite division enables me to express the point more simply.
[2][2005] VSCA 136 at [2] – [3].
[3]The charge book is in the process of being rewritten. The old charge book was used at this trial.

Those blemishes in the charge are not, however, among my reasons for joining in the orders made on 13^th February 2006.[4] I am more concerned that this was a case where it was essential for the jury to understand the point made by the Full Court in R. v. Lucin[5], by Southwell, A.J.A. and me in R. v. Ev Costa[6] and again by Batt, J.A. and me in R. v.…

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 Zilm

Details

AGLC: R v Zilm [2006] VSCA 72
Case: [2006] VSCA 72
Decision Date: 5 April 2006

CaseChat Overview and Summary

The case of R v Zilm involved a criminal trial in which the defendant was charged with rape and indecent assault. The defendant appealed against his conviction, arguing that the trial judge had given inadequate directions to the jury regarding the reasonableness of his belief that the victim was consenting. The appeal was heard in the High Court of Australia. The defendant contended that the trial judge's directions failed to relate to the facts in issue, particularly to the defendant's account in his record of interview.

The legal issues that the High Court was required to decide centred on the adequacy of the jury directions given by the trial judge. Specifically, the court had to determine whether the directions were sufficient in relation to the reasonableness of the defendant's belief about the victim's consent and whether they were appropriately related to the defendant's account as presented in his record of interview. Additionally, the court examined whether the failure of the defendant's counsel to object to the adequacy of the directions constituted a waiver of the right to appeal on this ground.

In its judgment, the High Court found that the trial judge's directions to the jury were indeed inadequate. The court held that the directions did not sufficiently relate to the facts in issue, particularly the defendant's account in his record of interview. Furthermore, the court noted that the prosecutor's reliance on the lies told by the defendant in his interview was not adequately addressed in the directions to the jury. This included the withdrawal by the prosecutor of the initial contention that the lies were evidence of consciousness of guilt, and the subsequent reliance on the lies only as relevant to the credibility of the defendant's account. The court also acknowledged that the failure of the defendant's counsel to take exception to the adequacy of the directions did not necessarily constitute a waiver of the right to appeal on this ground.

The High Court allowed the appeal, quashed the convictions, and ordered a retrial. This outcome was based on the finding that the inadequate directions to the jury regarding the reasonableness of the defendant's belief about the victim's consent, and the failure to adequately address the prosecutor's reliance on the lies in the defendant's record of interview, amounted to a miscarriage of justice.

Orders