A Thai national jailed for allegedly raping an ANU student in her room has won a retrial on appeal.
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The ACT Court of Appeal this morning upheld Amorn Punna-Ophasi’s appeal against his convictions and ordered a fresh hearing.
Justice Hilary Penfold, Richard Refshauge and John Buchanan found the trial judge’s directions might have unfairly influenced the jury in their deliberations.
Punna-Ophasi has been released on bail, but will go into immigration detention.
The accused man was serving a four-and-a-half year jail sentence for the alleged attack on the woman in December 2009.
The pair, who had never met before, were drinking with two mutual friends before the assault.
The two friends left, before Punna-Ophasi allegedly attempted to force himself on the woman.
She locked herself in her room, which was only accessible by a swipe card.
The court heard Punna-Ophasi then allegedly tricked his victim into thinking he had left.
She opened the door and the man again allegedly forced himself on her.
Punna-Ophasi told the court the sex was consensual, and that the pair had drank together, talked of visiting Thailand, and then taken drugs.
But in June a jury found him guilty of one count of sexual intercourse without consent and one count of assault with intent to engage in sexual intercourse.
He was acquitted of three other charges.
Defence barrister James Lawton launched an appeal, initially arguing the jury’s guilty verdicts were inconsistent with the acquittals and “unsafe and unsatisfactory”.
The Court of Appeal rejected that argument but agreed with Mr Lawton's concerns about the way Justice John Burns directed the jurors at the end of the trial.
They ruled his directions might have given the jury the impression the accused man had to provide an explanation for bruising on the alleged victim and the presence of hair “consistent” with his own in her bedroom.
“To have left the jury with the suggestion that any burden fell upon the appellant, as accused, is such a departure from the essential requirements of the law that the accused may not have had a proper trial,” the judges said.
“We feel unable to exclude the possibility that these matters may have unfairly influenced the jury in their deliberations about the two matters in respect of which they returned guilty verdicts.”
They set aside the guilty verdicts and directed a new trial take place.
