01:33, November 29 129 0 theguardian.com

2017-11-29 01:33:03
Both sides are denied a final resolution as Luke Lazarus won't face a rape retrial

Luke Lazarus will not have to face a retrial for the alleged rape of an 18-year 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 resolution 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:

“Well, it was – it was then that – it was about that – it was that time when I realised what a selfish – a thoughtless, inconsiderate thing that I had done and we just, you know, we just had sex and I had immediately disregarded her. I didn’t feel good – good about it – I felt – I felt uncomfortable walking with her.”

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