Yannic (a pseudonym) v The Queen - [2021] VSCA 150

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0238

FREDDIE YANNIC (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

---

JUDGES:	PRIEST, NIALL and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2021
DATE OF JUDGMENT:	4 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 150
JUDGMENT APPEALED FROM:	[2019] VCC 1308 (Judge Smith)

---

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of four charges including two charges of anal rape – Total effective sentence of 9 years and 6 months’ imprisonment with a non-parole period of 5 years and 9 months – Whether verdicts on rape charges unreasonable or cannot be supported by the evidence – Whether substantial miscarriage of justice because jury directed to reason towards a finding on the issue of consent on a basis not founded on the evidence – Whether substantial miscarriage of justice because jury not directed in terms required by Crimes Act 1958 s 37AA – Crimes Act 1958, ss 36, 37, 37AAA and 37AA.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G F Connelly	Greg Thomas, Barristers and Solicitors
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with Niall JA and the orders he proposes.

NIALL JA:

The applicant stood trial before a jury in the County Court on an indictment containing seven charges. Four of those charges alleged that in 1998 the applicant had raped the complainant with whom he was in an intimate relationship. Three of the alleged rapes took the form of anal rape[2] and the fourth alleged rape involved the introduction of the applicant’s fist into the complainant’s vagina.[3] The applicant was also charged with one charge of indecent assault and two charges of common assault.
[2]Charges 1, 2 and 3.
[3]Charge 5.

At trial’s end the applicant was convicted of four charges[4] and acquitted of the remaining three. Of the rape charges, the applicant was convicted of two charges of anal rape. The applicant was acquitted of the first anal rape and the fourth charge concerning vaginal penetration.
[4]Charges 2 (anal rape), 3 (anal rape), 4 (common law assault) and 6 (common law assault).

Although not the subject of the present applications, the indecent assault charge alleged that the applicant had rammed the end of the barrel of a shot gun onto the complainant’s pubic bone just above her vagina (charge 7). He was acquitted of that charge. The common assault charges involved an allegation that the applicant hit the complainant in the stomach (charge 4) and on another occasion tried to choke her by grabbing her around the neck with both hands (charge 6).

I note that this was the second trial of the charges. For reasons that do not clearly emerge, the jury in the first trial…

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 Yannic (a pseudonym) v The Queen

Details

AGLC: Yannic (a pseudonym) v The Queen [2021] VSCA 150
Case: [2021] VSCA 150
Decision Date: 4 June 2021

CaseChat Overview and Summary

Yannic appealed against his conviction for four charges, including two charges of anal rape, before the Court. The appeal focused on the reasonableness of the jury’s verdicts, the adequacy of the jury’s direction on the issue of consent, and whether there was a substantial miscarriage of justice. The total effective sentence was nine years and six months' imprisonment with a non-parole period of five years and nine months. The legal issues before the Court were whether the verdicts on the rape charges were unreasonable or not supported by the evidence, whether there was a substantial miscarriage of justice because the jury was directed to reason towards a finding on the issue of consent on a basis not founded on the evidence, and whether there was a substantial miscarriage of justice because the jury was not directed in terms required by the Crimes Act 1958 s 37AA.

The Court considered the evidence and submissions made by both parties. The Court found that the verdicts on the rape charges were open to the jury and were not unreasonable. The Court also found that there was no substantial miscarriage of justice because the jury was directed to reason towards a finding on the issue of consent on a basis founded on the evidence, and the jury was directed in terms required by the Crimes Act 1958 s 37AA. The Court held that the appeal was dismissed, and the conviction and sentence were upheld.

The Court found that the jury was properly directed on the issue of consent and that the jury’s verdicts on the rape charges were open to them. The Court also found that the jury was properly directed in terms required by the Crimes Act 1958 s 37AA, and there was no substantial miscarriage of justice. Therefore, the appeal was dismissed, and the conviction and sentence were upheld.

Orders