Both sides are de­nied a fi­nal res­o­lu­tion as Luke Lazarus won't face a rape re­trial

The Guardian Australia - - Headlines/News - Richard Ack­land

Luke Lazarus will not have to face a re­trial for the al­leged rape of an 18year old woman in a laneway at the rear of his fa­ther’s Soho bar in Kings Cross.

This is so even though the NSW court of crim­i­nal ap­peal found that the rea­sons of the trial judge, Robyn Tup­man, were flawed in a ma­te­rial re­spect and to that ex­tent the ap­peal by the prose­cu­tor had suc­ceeded.

In­stead, the ap­peal judges ex­er­cised a dis­cre­tion to deny a third trial for Lazarus be­cause “in the in­ter­ests of jus­tice” it would be be op­pres­sive and un­fair.

The ap­peal court’s rea­sons for not order­ing a re­trial gave lit­tle con­sid­er­a­tion of the in­ter­ests of the young woman, who in pre­vi­ous pro­ceed­ings was the vic­tim and is now re­ferred to as “the com­plainant”. It is an un­sat­is­fac­tory judg­ment to the ex­tent that both Lazarus and the com­plainant are de­nied a fi­nal reso-

lu­tion of the rape al­le­ga­tion by a tri­bunal of the facts be­ing prop­erly di­rected on the law.

Even though Lazarus now knows that the trial judge made an er­ror in her rea­sons for ac­quit­tal he must be re­lieved that, short of some­thing more strin­gent from the high court, he’s home free.

It’s been a rel­a­tively lengthy process. The al­leged rape on 11 May 2013; first trial in Jan­uary-Fe­bru­ary 2015; the ac­cused con­victed and jailed; court of crim­i­nal ap­peal quash­ing the con­vic­tion on 19 Fe­bru­ary 2016 and order­ing a new trial; Lazarus re­leased af­ter 10 months in pri­son; re­trial be­fore judge Tup­man with­out a jury; a find­ing of not guilty on 4 May 2017; crown ap­peal dis­missed on 27 Novem­ber 2017.

In those cir­cum­stances, the ap­peal judges were con­cerned to spare Lazarus the “ex­pense and worry of a third trial”. The court said it has a duty to en­sure that the con­tin­ued op­er­a­tion of the crim­i­nal jus­tice sys­tem is not “a source of op­pres­sion or un­fair­ness”. Ac­count was also taken of the fact that if a re­trial was or­dered it would not take place un­til the lat­ter half of 2018, by which stage it would be five years af­ter the in­ci­dent at the Soho.

For the re­spon­dent (aka Luke Lazarus) it’s too drawn out, too ex­pen­sive, too stress­ful, too un­fair. One might also won­der how “the com­plainant” feels?

The CCA rea­sons come at a mo­ment of height­ened aware­ness about the abuse of women and in this re­spect, Luke Lazarus him­self may have recog­nised his own fail­ings. When asked at the trial why, af­ter the sex­ual en­counter in the laneway, he al­lowed the young woman to walk away by her­self, he told the court:

Yet, in the af­ter­noon fol­low­ing sex in the laneway Lazu­rus texted a friend: “I hon­estly have zero rec­ol­lec­tion of call­ing you ... Was a sick night – took a chick’s vir­gin­ity.”

The friend replied: “ba­ha­ha­haha nice pop­ping does cher­ries ...”

Lazarus: “... it’s a pretty gross story tell ya later.”

That seems a long way from the re­morse­ful Lazarus. The com­plainant felt a lot worse than un­com­fort­able. Af­ter leav­ing the laneway she had run to Kings Cross rail­way sta­tion and was in tears be­liev­ing she had been raped. Through her Face­book posts we know that “this doesn’t get to be over for me. I don’t get to know who I would be to­day had this not hap­pened to me, and I mourn for that per­son.”

The young women, who can­not be named, con­tended that she was drunk by the time she met Lazarus on the dance floor of the Soho around 4am. She had con­sumed a lot of bour­bon, other spir­its in a cock­tail called a “teapot”, vodka and more vodka. She told the court she was “out of it”.

While in the laneway and af­ter kiss­ing Lazarus she said she wanted to go back to her friend. “I really need to go.” He pulled her stock­ings down, she pulled them up and again said she had to leave. She said Lazarus told her: “Put your fuck­ing hands on the wall.” His tone was im­pa­tient and more ag­gres­sive. She was scared – “I didn’t know what to do so I just did what he said.” He said: “Get on your hands and knees and arch your back.” His tone was “not nice”. “He put his pe­nis into my butt, bum I guess ... I kept say­ing I have to go back to my friend ... I said stop.” Af­ter­wards he asked her to put her name into the notes app on his phone. She said she did this be­cause she just wanted to get away quickly.

Her ver­sion of events was at­tacked by the de­fence. Lazarus said the anal sex was con­sen­sual. He de­nied she was well af­fected by al­co­hol, that she had said “stop”, that she said she had to go, that he pulled down her un­der­wear, that he told her in a frus­trated tone to “put [her] fuck­ing hands on the wall”, and de­nied she had cried out in pain. How­ever, he agreed that at no stage did he ask the com­plainant whether she wanted to have sex with him.

Judge Tup­man pre­ferred Lazarus’ ver­sion of events and thought it showed the ac­cused had rea­son­able grounds for be­liev­ing the com­plainant was con­sent­ing, even though she found she was not. Lit­tle weight was placed on fac­tors such as the young woman’s fear and in­ex­pe­ri­ence. And, of course, there’s al­ways the press­ing ques­tion, why would she com­plain to the po­lice if she hadn’t be­lieved this was a sex­ual as­sault?

The crown put for­ward two grounds of ap­peal from Tup­man’s rea­sons for ac­quit­tal: that the judge er­ro­neously took into ac­count Larazrus’ self-in­duced in­tox­i­ca­tion as a fac­tor in de­ter­min­ing whether he be­lieved the com­plainant con­sented, and she failed to have re­gard to the steps taken by Lazarus to de­ter­mine whether there was con­sent.

The first ground failed, but nonethe­less is in­ter­est­ing. The Crimes Act pro­vides that an ac­cused’s self-in­duced in­tox­i­ca­tion is not to be taken into ac­count by a judge or jury as a fac­tor in de­ter­min­ing whether the vic­tim con­sented. Tup­man de­liv­ered her judg­ment orally and in it there is this pas­sage: “I am en­ti­tled to take into ac­count his level of self-in­duced in­tox­i­ca­tion, es­pe­cially in de­cid­ing whether or not it was an hon­estly held be­lief, but also whether or not there were rea­son­able grounds for hold­ing such a be­lief.”

This sub­stan­tial er­ror, which found its way into the tran­script, was the DPP’s first ground of ap­peal, and af­ter the district court was no­ti­fied by Lazarus’ so­lic­i­tor, Michael Blair, the judg­ment was changed by Tup­man with the ad­di­tion of the word “not” be­fore the word “en­ti­tled”.

Mak­ing a sig­nif­i­cant change to a judg­ment af­ter it is de­liv­ered is im­per­mis­si­ble, but here the ap­peal judges de­ter­mined it was a ty­po­graph­i­cal er­ror, or a “slip of the tongue”, as there were other pas­sages where judge Tup­man cor­rectly ap­plied the law about self-in­duced in­tox­i­ca­tion. How­ever, she also said in her rea­sons that this “quick un­ro­man­tic” event may not have oc­curred “if each had been sober”.

The crown again ar­gued this showed that the ac­cused’s in­tox­i­ca­tion was part of the judge’s “rea­son­ing process which she adopted to reach her con­clu­sions”. The ap­peal judges dis­missed Tup­man’s state­ment as “sur­plusage”.

The se­cond ground was more fer­tile. The Crimes Act also re­quires “the trier of fact” to have re­gard to “any steps” taken by an ac­cused to de­ter­mine whether the vic­tim con­sents. On this the ap­peal court agreed with the crown – judge Tup­man had merely re­cited some of the facts as she found them, but this was not a proper at­tempt to ex­pose her rea­son­ing process on con­sent, as re­quired by law. Even though this ground of ap­peal had been made out, the CCA went on to de­ter­mine that there was not a pub­lic in­ter­est in order­ing a new trial.

Jus­tice Ge­of­frey Bellew, who wrote the ap­peal judg­ment, recog­nised that while it is “de­sir­able that the guilt or oth­er­wise of any of­fender be de­ter­mined by the ap­pro­pri­ate tri­bunal of fact” he went on to add: “... I recog­nise that any crim­i­nal trial is an or­deal for a com­plainant, it is also an or­deal for an ac­cused.”

Even with­out a fur­ther trial, the or­deal aris­ing from the events of 11 May 2013 for both Lazarus and the young woman is un­likely to be over. See judg­ment in full: R v Lazarus. Richard Ack­land is a Guardian Aus­tralia colum­nist

Luke Lazarus leaves the Down­ing Cen­tre district court in Syd­ney, 4 May 2017. Pho­to­graph: Dan Him­brechts/AAP

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