Ryan James Keogh v The Queen - [2018] VSCA 145

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0219

RYAN JAMES KEOGH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, McLEISH JJA and EMERTON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 May 2018
DATE OF JUDGMENT:	6 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 145
JUDGMENT APPEALED FROM:	DPP v Keogh (Unreported, County Court of Victoria, Judge Parsons, 23 May 2017)

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CRIMINAL LAW – Appeal – Conviction – Rape (3 charges) – Complicity – Relevance of applicant’s intoxication to complicity charges – Discussions between trial judge and counsel about jury directions – Jury directions – No direction sought about relevance of applicant's intoxication to complicity charges – No direction given about relevance of applicant’s intoxication to complicity charges – Whether substantial and compelling reasons for giving direction – No substantial or compelling reason for giving direction – Rational forensic decision by trial counsel not to seek direction – Crimes Act 1958, ss 34C, 37G, 37H(1)(a), 38, 323(1)(a), 324 and 324C – Jury Directions Act 2015, ss 11, 12, 15, 16, and 47(3)(b)(i).

CRIMINAL LAW – Appeal – Conviction – Rape (3 charges) – Complicity – Consent – Whether complainant consented – Whether applicant reasonably believed complainant consented – Complainant’s evidence of saying ‘No’ – Whether any alleged deficiencies in complainant’s evidence, coupled with statements made by complainant, coupled with complainant’s intoxication and applicant’s good character required jury to acquit – Whether jury must have entertained reasonable doubt – Application for leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr P J Smallwood	MSA Law
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
McLEISH JA
EMERTON AJA:

On the evening of Saturday 13 February 2016, the applicant and the complainant were engaging in consensual sexual intercourse in a camping area at the Colac Bachelor and Spinster’s Ball. While so engaged, a friend of the applicant, Patrick McGrath, was observed walking in the area. The applicant suggested that McGrath ‘join in’. The complainant’s response to this suggestion was a matter of dispute at the subsequent trial of the applicant and McGrath for the rape of the complainant. What is not in dispute is that, subsequent to the suggestion that McGrath join in, the complainant was sexually penetrated twice by McGrath (charges 1 and 3) and twice by the applicant (the first of these was not charged, and the second was the subject of charge 2).

The applicant and McGrath were tried in the County Court for the rape of the complainant. Each was tried as a principal in respect of his own penetration of the complainant, and as being complicit in relation to the penetration of the complainant by the other. Each was found guilty of three charges of rape. The applicant now seeks leave to appeal against his conviction on the following grounds:

1.The trial judge erred in his directions to the jury on the law…

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 Ryan James Keogh v The Queen

Details

AGLC: Ryan James Keogh v The Queen [2018] VSCA 145
Case: [2018] VSCA 145
Decision Date: 6 June 2018

CaseChat Overview and Summary

Ryan James Keogh appeals his conviction for three charges of rape, specifically challenging the trial judge's failure to direct the jury about the relevance of his intoxication to the complicity charges. The jury found him guilty on all counts, and he was sentenced to imprisonment. The case was heard in the Court of Appeal, which dismissed the appeal and denied leave to appeal to the High Court. The primary legal issues revolved around the trial judge's decision not to provide specific jury directions regarding the relevance of Keogh's intoxication to the complicity charges and the sufficiency of the evidence to support the jury's verdict on the competency of the complainant's consent.

The court examined whether there were substantial and compelling reasons for the trial judge to direct the jury about Keogh's intoxication concerning the complicity charges. It was noted that Keogh's counsel did not seek such a direction, and the trial judge did not provide it. The court concluded that there were no substantial or compelling reasons for the trial judge to give the direction, as the trial counsel's decision not to seek it was rational. Furthermore, the court found that the jury's verdict was properly based on the evidence presented, including the complainant's testimony of saying 'No' and the lack of reasonable doubt regarding her competency to consent. The court upheld the conviction, finding that the trial was conducted fairly and the evidence was sufficient to support the jury's decision.

The Court of Appeal dismissed the appeal, finding that the trial judge's decision not to direct the jury about the relevance of Keogh's intoxication to the complicity charges was justified. The court emphasised that the trial counsel's decision not to seek such a direction was rational and that there were no substantial or compelling reasons to require the trial judge to give the direction. The court also found that the jury's verdict was supported by the evidence, particularly the complainant's testimony and the absence of reasonable doubt regarding her competency to consent. The appeal was dismissed, and the conviction was upheld. The final orders of the court confirmed the dismissal of the appeal and the denial of leave to appeal to the High Court.

Orders