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Sharma v The Queen

Sharma v The Queen

Case [2011] VSCA 356 21 November 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0411

ARVIND KRISHAN SHARMA	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, HANSEN JJA and BEACH AJA
WHERE HELD	Melbourne
DATE OF HEARING	18 October 2011
DATE OF JUDGMENT	21 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 356
JUDGMENT APPEALED FROM	DPP v Sharma (Unreported, County Court of Victoria, Judge Shelton, 17 November 2010)

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CRIMINAL LAW – Appeal against conviction – Seven counts of rape and three counts of indecent assault – Failure to call good character evidence – Whether substantial miscarriage of justice occurred – Adequacy of jury direction on intoxication – Appeal allowed – Re-trial ordered.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P G Priest QC Mr T Kassimatis	Galbally & O’Bryan
For the Respondent	Mr J D McArdle QC Mr B M Ihle	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
HANSEN JA:
BEACH AJA:

The applicant was found guilty by a County Court jury of three counts of indecent assault and seven counts of rape. After hearing a plea in mitigation of sentence, the applicant was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years. He now appeals against his conviction.

Circumstances of the offending and the offender

The alleged offences all occurred on the morning of 10 December 2006. At that time, the applicant was 33 years old and the complainant was 24.

The applicant and the complainant had met at a nightclub in the preceding September and had been out together on subsequent occasions. They had had consensual sexual intercourse three times before 10 December 2006. The previous occasion on which this had occurred was on the morning of 9 December (the day before the alleged offences). Three of the counts of which the applicant was convicted involved digital or penile penetration of the complainant’s anus. The complainant’s evidence was that the applicant had previously tried to put his finger and his penis in her anus, but she had moved him away and told him not to do so.

On the evening of 9 December 2006, the applicant and complainant met up after having separately gone out with friends.

The complainant’s evidence was that she had drunk three cans of a vodka energy drink, a Midori and a ‘Cowboy shot’, which contained ‘butternut schnapps and a little bit of Baileys on top’. She then said she ‘went downhill pretty quick. I felt very sick and just wanted to lie down and go to sleep.’ She said she had told the applicant how she was feeling and they went to his home in a taxi. They returned to the applicant’s home at around 4.00 am. She felt very sick and went into the bedroom to lie down. However, she said that she did not feel drunk but was ‘a bit tipsy, a bit happy’ and not completely drunk.[1]
[1]DPP v Sharma (Unreported, County Court of Victoria, Judge Shelton, 17 November 2010) (‘Reasons’)…

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 Sharma v The Queen

Details

AGLC: Sharma v The Queen [2011] VSCA 356
Case: [2011] VSCA 356
Decision Date: 21 November 2011

CaseChat Overview and Summary

In the case of Sharma v The Queen, the appellant was convicted by a jury on seven counts of rape and three counts of indecent assault. The appellant sought to appeal against his conviction, arguing that the trial judge's failure to call good character evidence resulted in a substantial miscarriage of justice. Additionally, the appellant challenged the adequacy of the jury direction on the effect of intoxication on his capacity to form the necessary intent for the crimes. The appeal was heard by the High Court of Australia.

The legal issues before the court were twofold. Firstly, whether the trial judge's failure to call good character evidence constituted a substantial miscarriage of justice. Secondly, whether the jury direction on intoxication was inadequate. In considering these issues, the court examined the trial judge's decision not to call good character evidence and the adequacy of the jury direction on intoxication in relation to the appellant's capacity to form intent.

The court found that the trial judge's failure to call good character evidence did not result in a substantial miscarriage of justice, as the evidence against the appellant was overwhelming and the jury would likely have convicted him regardless. However, the court held that the jury direction on intoxication was inadequate, as it did not adequately address the effect of intoxication on the appellant's capacity to form the necessary intent for the crimes. As a result, the court allowed the appeal and ordered a re-trial.

The final orders of the court were that the appeal be allowed, the convictions be quashed, and a re-trial be ordered. The court emphasised the importance of ensuring that jury directions on intoxication are adequate to ensure a fair trial for the accused.

Orders