Roberts v The Queen - [2011] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0803

PETER CHARLES ROBERTS	Applicant
	V
THE QUEEN	Respondent

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JUDGES	BUCHANAN and BONGIORNO JJA and LASRY AJA
WHERE HELD	WANGARATTA
DATE OF HEARING	31 May 2011
DATE OF JUDGMENT	2 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 162
JUDGMENT APPEALED FROM	R v Roberts (Unreported, County Court of Victoria, Judge White, 9 July 2009 (date of verdict), 28 August 2009 (date of sentence))

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted on one count of rape – Complainant gave evidence that she was asleep at time of alleged rape – Applicant asserted in record of interview that he believed that complainant was consenting – Trial judge directed jury that they could find accused guilty even if they found that he believed that complainant was consenting – Trial judge also directed jury that mens rea for rape would be established if Crown proved beyond reasonable doubt that accused was aware that complainant might be asleep at time of penetration – Trial judge’s directions were erroneous – Proviso could not be applied – Application granted and appeal treated as instituted and heard instanter and allowed – Retrial ordered – Worsnop v The Queen [2010] VSCA 188 – Burns v The Queen (1975) 132 CLR 258 – Crimes Act 1958 ss 36 and 37AA.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr P F Tehan QC and Mr C B Boyce	Michael J Gleeson & Associates
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

In March 2008, the applicant, Peter Charles Roberts, was temporarily living with the complainant and her 10-year-old daughter at the complainant’s unit in a Melbourne suburb. On 20 March 2008, the complainant was at home with Roberts and her daughter when a neighbour, WP, arrived. She, Roberts and WP drank some alcohol. The complainant also had a small amount of cannabis. After some time, WP left. The complainant went to bed and, on her evidence, did not wake up until morning.

When the complainant woke the next morning, she felt a stinging sensation in her vagina. She went to the toilet and noticed the odour of semen. She had fluid on her legs and her pyjamas had a stain on them. She recognised the sensation and the odour as being the result of having had sexual intercourse, though she had no recollection of engaging in such activity. The only other persons in the house when she got up were her 10-year-old daughter and the applicant. Her daughter was asleep in the complainant’s bed and the applicant was asleep on a couch in the living room.

Since it appeared that the only person who could have been responsible for her condition was the applicant, the complainant confronted him and demanded to know why he had done what he did. The applicant said he did…

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 Roberts v The Queen

Details

AGLC: Roberts v The Queen [2011] VSCA 162
Case: [2011] VSCA 162
Decision Date: 2 June 2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, the applicant, Mr Roberts, sought leave to appeal against his conviction for one count of rape. The complainant had testified that she was asleep at the time of the alleged offence. Mr Roberts had asserted in his record of interview that he believed the complainant was consenting at the time of the offence. The trial judge directed the jury that they could find Mr Roberts guilty even if they found that he believed the complainant was consenting. Additionally, the trial judge directed the jury that the mens rea for rape would be established if the Crown proved beyond reasonable doubt that Mr Roberts was aware that the complainant might be asleep at the time of penetration. Mr Roberts argued that the trial judge's directions were erroneous and that the proviso in section 37AA of the Crimes Act 1958 could not be applied.

The court examined the legal issues regarding the mens rea for rape and the applicability of the proviso in section 37AA of the Crimes Act 1958. The court found that the trial judge's directions to the jury were incorrect. The court held that the proviso could not be applied in this case, as it was not possible to establish the requisite mens rea for rape if the accused believed the complainant was consenting. The court also held that the proviso could not be applied where the accused was aware that the complainant might be asleep. The court found that the trial judge's directions had the effect of lowering the Crown's burden of proof and had the potential to result in a wrongful conviction. The court concluded that the errors were substantial and that the conviction was unsafe and unsatisfactory.

Consequently, the court granted the application for leave to appeal against conviction. The appeal was treated as instituted and heard instanter and was allowed. The conviction and sentence entered below were set aside, and it was ordered that Mr Roberts be retried. The court's decision relied on the authorities of Worsnop v The Queen and Burns v The Queen, as well as the provisions of the Crimes Act 1958. The court's decision ensures that Mr Roberts receives a fair trial and that the correct legal principles are applied in cases of rape.

Orders

Orders of the court

1. The application for leave to appeal against conviction is granted.

2. The appeal is treated as instituted and heard instanter and is allowed.

3. The conviction and sentence entered below are set aside and it is ordered that the applicant be retried.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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