| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0059 |
| RICHARD SLADEK | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | EMERTON ACJ, PRIEST and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 May 2024 |
| DATE OF JUDGMENT: | 4 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 119 |
| JUDGMENT APPEALED FROM: | [2023] VCC 435 (Judge Karapanagiotidis) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of rape and acquitted of one charge of attempted rape – Both charges arising from incident involving same complainant – At trial only issue whether complaint consented to sexual penetration – Whether jury verdicts inconsistent – Application for leave to appeal granted – Appeal allowed – Guilty verdict set aside.
Crimes Act 1958 (Vic), s 321N.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591; R v TK (2009) 24 NSWLR 299, considered.
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| Counsel | |||
| Applicant: | Mr C Hooper | ||
| Respondent: | Ms S Clancy | ||
Solicitors | |||
| Applicant: | Ann Valos Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON ACJ
PRIEST JA
KAYE JA:
The applicant was charged, on indictment, with one charge of attempted rape (charge 1), and one charge of rape (charge 2). Those offences were alleged to have occurred at the applicant’s home in Harkness on 28 October 2018. The jury that was empanelled on his trial returned a verdict of not guilty on the charge of attempted rape, but guilty on the charge of rape. The applicant was sentenced, on that charge, to 5 years and 4 months’ imprisonment, with a non-parole period of 3 years and 1 month.
The applicant seeks leave to appeal against his conviction on the charge of rape on two grounds, namely:
GROUND 1 — The verdict of guilty on charge 2 cannot be reconciled logically or factually with the jury’s verdict of not guilty on charge 1, to such an extent that that [sic] it is an affront to logic and common sense which is unacceptable and strongly suggests compromise in the performance of the jury’s duty given that:
(a)The events formed part of the same incident and occurred in close temporal proximity such that there is not distinction between the evidence in respect of each charge;
(b)It was not reasonably open to the jury to find that that [sic] the complaint was consenting to the actions the subject of charge 1 but not consenting to the actions the subject of charge 2 particularly given the admissions in the record of interview and the complainant’s own account; and
(c)Given the complainant’s evidence, the verdict of not guilty on charge 1 cannot be explained merely on the basis that the jury may have found the applicant was not attempting to penetrate the complainant’s vagina.
GROUND 2 — The verdict of guilty on charge 2 is unreasonable and cannot be supported having regard to the evidence in respect of the complainant’s actions prior to, during and at…
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- Sladek v The King [2024] VSCA 119
- Case
- [2024] VSCA 119
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the jury's verdicts were inconsistent, given that both charges arose from the same incident involving the same complainant. The court examined the nature of the jury's task in determining whether the complainant consented to sexual penetration and whether it was possible for the jury to find the applicant guilty of one charge while acquitting him of the other. The court also considered whether the verdicts were irreconcilable, as established in previous cases such as MacKenzie v The Queen and MFA v The Queen. The High Court held that the verdicts were indeed inconsistent, as the jury could not have found the applicant guilty of one charge without necessarily finding him guilty of the other.
The High Court found that the jury's verdicts were inconsistent, as it was impossible for the jury to find the applicant guilty of the rape charge without also finding him guilty of the attempted rape charge. The court held that the jury's task in determining whether the complainant consented to sexual penetration was a continuous process, and the verdicts were irreconcilable, as established in previous cases such as R v Kirkman and R v TK. The High Court concluded that the verdicts were inconsistent and that the applicant should be acquitted of the rape charge. Consequently, the court set aside the guilty verdict on the rape charge and allowed the appeal.
The High Court's decision in Sladek v The King demonstrates the importance of ensuring consistency in jury verdicts, particularly when charges arise from the same incident involving the same complainant. The court's ruling highlights the need for careful consideration of the nature of the jury's task and the potential for irreconcilable verdicts in cases involving sexual offences. The court's decision also reinforces the importance of ensuring that the legal process is fair and just for all parties involved, including the accused and the complainant. The final orders in this case involved setting aside the guilty verdict on the rape charge, resulting in the applicant's acquittal on that count.
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