Index
R v RTM [2006] VSCA 170 (28 August 2006), Victorian Court of Appeal: Neave JA
Summary
The applicant sought leave to appeal against his conviction on five counts relating to sexual abuse of a child under 16 years of age. It was argued by the applicant that there was inconsistency in the jury verdicts, rendering them unsafe and unsatisfactory. The applicant had been acquitted of several counts relating to incest but convicted on multiple counts of indecent acts. Leave to appeal was refused.
Feminist judgment
Neave JA drew on research concerning child sexual assault to dispel myths concerning the expected behaviour of the victim. “[R]esearch reveals that some of the matters described…are common aspects of sexual assaults against children”, including delayed reporting and not disclosing all details or incidents initially, especially when the perpetrator is a family member. She continued that while each case must be decided on its own facts, “it is equally important that myths about the ‘typical behaviour’ of people who complain of sexual assault do not provide the basis for drawing unjustified factual inferences.”
R v Kovac [2006] VSCA 229 (30 October 2006), Victorian Court of Appeal: Neave JA
Summary
The appellant was convicted on multiple counts of indecent assault on a male child under 16 years of age. The appellant sought leave to appeal against the sentence on the ground that it was manifestly excessive. Leave to re-open the sentence was granted as the trial judge had failed to correctly apply the R v Smith test for whether imprisonment would be more burdensome for the appellant than for someone of normal health. The appellant submitted that his age and ill health were mitigating factors. The Court allowed the appeal but imposed the same sentence as the trial judge.
Feminist judgment
In the course of her judgment, Neave JA took judicial notice of the well-known factors which may cause delay in reporting of child sexual offences: ”It is common for child victims of sexual offences to have difficulty in telling others about the offences which have been committed against them. Often offenders tell victims to keep the offence a secret.”
R v Abela [2007] VSCA 22 (28 February 2007), Victorian Court of Appeal: Neave JA
Summary
The defendant was convicted of raping the victim. The defendant appealed on the basis that evidence that the victim knew he had previously sexually assaulted her daughter should not have been admitted because its prejudicial effect outweighed its probative value.
Feminist judgment
Neave JA rejected this argument on the basis that the evidence was highly probative – “it is difficult to envisage an event which is likely to have a greater effect on the complainant’s willingness to participate in sexual activity with the applicant” – and there was no less prejudicial way available of placing the defendant’s act of intercourse with victim in its proper context.
DPP v Barnes [2007] VSCA 51 (29 March 2007), Victorian Court of Appeal: Neave JA
Summary
The DPP sought leave to appeal against the sentence imposed on the respondent for several counts relating to the sexual penetration of a resident in the residential facility in which the respondent worked as a carer, on the ground that it was manifestly inadequate. The complainant suffered from various mental impairments sustained from injuries from a car accident. The complainant and respondent had engaged in sexual activity. The respondent was sentenced to one year of imprisonment on each count, to be served concurrently. Leave to appeal was dismissed.
Feminist judgment
In the course of her judgment, Neave JA took judicial notice of the fact that “People who have an intellectual disability, or an acquired brain injury, are vulnerable to sexual exploitation, because they usually have to depend on others to help them with ordinary daily activities.”
R v Goodall [2007] VSCA 63 (13 April 2007), Victorian Court of Appeal: Neave JA
Summary
The defendant was charged with child sexual offences. During the prosecutor’s closing address a juror became distressed and disclosed he had been sexually abused as a child. The judge discharged the juror but continued with the rest of the jury who convicted the defendant. The defendant appealed and argued the judge should have dismissed the whole jury as they may have been tainted by the discharged juror.
Feminist judgment
Neave JA rejected the notion that personal experience of sexual assault necessarily equated with ‘bias’, and quoted feminist legal literature in support:
“I do not accept the submission that a person who has had a particular life experience cannot serve on a jury in a trial which concerns matters to which that experience is relevant. In this case the argument, put simply, amounts to the generalisation that victims of sexual assault are incapable of bringing an objective mind to the issues to be resolved in the trial of an accused for sexual offences, while other members of the jury who have not had such an experience are capable of doing so. It should not be assumed that a person who has been sexually assaulted is more likely to be prejudiced against the accused than other jurors.
“It is to be expected that juries will, at times, include persons who have been victims of crimes… As Professor Martha Minow points out in an excellent article on bias and impartiality, the purpose of selecting juries from a cross-section of the community is intended to ensure they bring a variety of perspectives and experiences to the task of fact-finding.”
Neave JA then proceeded to quote from Minow’s article, ‘Stripped Down Like a Runner or Enriched by Experience?’ (1992) 33 William & Mary Law Review 1201, 1217.
R v Hoang [2007] VSCA 117 (7 June 2007), Victorian Court of Appeal: Neave JA
Summary
This was a stalking case in which the defendant argued that the required mental element should be subjective. The defendant was unrepresented throughout the trial and was found guilty of stalking by the trial judge. On appeal, the Court found that the trial judge had failed to make the unrepresented defendant aware of the terms and effect of s 360A of the Crimes Act 1958 (Vic) and a retrial was ordered.
Feminist judgment
Neave JA rejected the argument that the mental element of a stalking offence should be judged subjectively, by reference to the purpose of the legislation:
“The policy rationale for this provision is clear. It may be that many stalkers falsely believe that they have a relationship with the person they pursue, even though they may have never met or spoken to the victim. A provision which required proof of a subjective intention to cause harm to the victim would not apply to an alleged stalker who obsessively pursued the victim on the basis of a false belief that these attentions were welcome.”
R v DD (No 2) [2008] VSCA 15 (18 February 2008), Victorian Court of Appeal: Neave JA
Summary
The appellant was successful in gaining leave to appeal on several convictions for sexual offences. The Court quashed several of these convictions while the remaining counts of incest and multiple counts of indecent assault required re-sentencing.
Feminist judgment
In the course of her judgment, Neave JA took judicial notice of the fact that “Victims of incest and other forms of intra-familial sexual abuse take years to recover from its psychological effects and sometimes never do.”
R v RW [2008] VSCA 79 (16 May 2008), Victorian Court of Appeal: Neave JA
Summary
The defendant was convicted of rape, indecent assault of a child under 16 years and multiple counts of indecent assault in respect of two complainants. The defendant sought leave to appeal against the convictions and sentence. The appeal was allowed and all convictions were set aside.
Feminist judgment
Neave JA found that she was compelled by High Court authority to uphold the defendant’s appeal against conviction on the basis that the trial judge did not give a sufficient Longman warning (a warning that it is dangerous to convict on the uncorroborated evidence of the complainant in rape or sexual assault cases by virtue of the delay in reporting, the age of the victim and the nature of the allegations). But she noted considerable criticisms of the way in which the requirement in Longman had been interpreted and applied and drew attention to recent amendments to the Victorian Crimes Act 1958 which substantially modified the law in this regard.
R v Falls (Unreported, 2-3 June 2010), Supreme Court of Queensland: Applegarth J
Summary
Susan Falls had experienced serious violence in her home from her intimate partner over many years. Ultimately she poisoned her husband’s food to sedate him and then shot him dead and disposed of the body. She was charged with murder. In the days before she killed him, the deceased had punched Susan in the chest with such force that it was painful to cough or sneeze. The case was dealt with shortly after the introduction of the new partial defence of self-preservation which operates to reduce murder to manslaughter (s304B of the Queensland Criminal Code). The defence case was run on the basis of self-defence, however there was a question of whether Falls was defending herself from an imminent attack. Applegarth J directed the jury on both the self-preservation defence and self-defence
Feminist judgment
In directing the jury on self-defence, Applegarth J said:
“[I]t doesn’t matter that at the moment she shot Mr Falls in the head he didn’t at that moment offer or pose any threat to her. He had assaulted her. There was the threat that there would be another one and another one and another one after that until one day something terrible happened. It might have been the next day, it might have been the next week, but the risk of death or serious injury to her was ever present.”
This approach to ‘imminence’ focuses not whether the accused was facing an attack that was just about to happen, but whether the dangerous nature of her relationship meant that an attack could happen at any time and inevitably would happen at some stage in the near future. It thus takes into account the context of the relationship as crucial to the motivation of the accused.
Quach v The Queen [2011] VSCA 390 (29 November 2011), Victorian Court of Appeal: Tate JA
Summary
The applicant sought leave to appeal against his conviction for rape. In the course of the trial, the jury questioned the judge on the applicant’s failure to submit evidence of good character and whether there was anything preventing him from leading such evidence. Counsel for the applicant sought to have the jury discharged but this was refused and the trial judge issued a jury direction instead. The applicant sought leave to appeal against his conviction on the grounds that the judge erred in failing to discharge the jury, the direction given by the judge was inadequate and the verdict was unsafe and unsatisfactory. Warren CJ, in dissent, would have allowed the appeal on the ground that the direction given to the jury was unsatisfactory. Neave and Tate JJA dismissed the appeal. Tate JA found that the trial judge’s answers and directions to the jury had been adequate. She then turned to the question of whether the verdict was unsafe and unsatisfactory. The applicant contended that the complainant’s account of anal rape was inherently implausible, in part because she had not bled or experienced any physical injury and because she could not recall whether the appellant had ejaculated. The complainant testified that she had showered immediately after the rape.
Feminist judgment
Tate JA found that “The answers given by the complainant were clear and truthful without embellishment”, and she did not consider the account implausible. In doing so, she rejected one of the central myths associated with rape – that rape to be real must cause physical injury. She also impliedly accepted that a complainant may feel the need to shower immediately after being violated in this way. Special leave to appeal to the High Court of Australia was refused (see Quach v The Queen [2012] HCATrans 350).
Khan v The Queen [2011] VSCA 286 (23 September 2011), Victorian Court of Appeal: Tate JA
Summary
The applicant, Mr Khan, was convicted of the rape of a woman in an alleyway outside a nightclub in central Melbourne. The issue at trial was whether Mr Khan was a member of a group of men whom the complainant awoke to find assaulting her. Mr Khan denied that he was a member of any group and submitted that he had had consensual sex with the victim in a separate incident. Mr Khan was found guilty of rape. He sought to appeal against his conviction and sentence on the grounds that the trial judge erred in failing to properly direct the jury on various matters including recent complaint and prior inconsistent statements by the complainant. The complainant had been unconscious when she was raped and she had admitted that she had tried to reconstruct some of the details when she complained afterwards to her friend. The Court refused the applications for leave to appeal.
Feminist judgment
The complainant was inconsistent in the detail of her complaint, however Tate JA accepted that, although the details were perhaps inconsistent, “the focus is on whether the behaviour complained of is consistent with the allegation rather than whether every detail of the complaint is consistent with the allegation”. The decision implicitly accepts that it may be difficult given the stressful circumstances of the rape in this case, but also in other cases, to properly recall details.
Roberts v The Queen [2012] VSCA 313 (17 December 2012), Victorian Court of Appeal: Tate JA
Summary
This was an appeal against conviction for rape and false imprisonment on the grounds that the verdicts were unsafe and unsatisfactory and that the judge erred in refusing leave for the complainant to be cross-examined on her prior sexual abuse. The appellant was convicted of the rape of the complainant who was 16 at the time of the offence. According to the complainant, she had been intoxicated and approached the appellant’s car to ask for a cigarette. The appellant offered to drive the complainant to a service station in order to purchase cigarettes. Cigarettes were purchased and then the appellant drove the car to a remote parking area where he proceeded to threaten the complainant with a knife she had in her bag and to rape her in the vehicle. The appellant submitted that the verdict was unsafe and unsatisfactory due to the complainant’s lack of credibility. The appeal failed.
Feminist judgment
Tate JA noted the high threshold for finding a verdict to be unsafe and found that despite various inconsistencies in the complainant’s version of the circumstances surrounding the offence, the central matter of her rape and false imprisonment in the vehicle was firm and it was open to a jury to convict on that basis. In relation to the appellant’s argument that leave to cross-examine the complainant on her sexual history had been necessary as it was possible she had ‘transposed’ an earlier instance of sexual abuse onto the current circumstances, Tate JA found that neither the evidence nor the version of events put by the appellant supported this theory.
MA v The Queen [2013] VSCA 20 (14 February 2013), Victorian Court of Appeal: Osborn JA
Summary
The applicant was convicted on seven charges related to the sexual abuse of his daughter. In the course of the trial, Dr Sullivan submitted expert evidence that sought to situate the complainant’s reactions to the alleged abuse within a behavioural framework. Leave was given to appeal against conviction on the basis that it was reasonably arguable that Dr Sullivan was not sufficiently qualified to tender such evidence. Further leave was granted to contest the admissibility of the expert evidence on the grounds that it was irrelevant and extremely prejudicial, such that it required exclusion under s 55 of the Evidence Act 2008 (Vic). The Court dismissed the appeal.
Feminist judgment
In this judgment the Court of Appeal found that the psychologist’s evidence of the dynamics of sexual abuse was relevant in understanding the victim’s counter-intuitive behaviour.