AS v RA
[2019] VMC 14
•18 MARCH 2019
IN THE VICTIMS OF CRIME ASSISTANCE TRIBUNAL
SITTING IN MAGISTRATES’ COURT OF VICTORIA
AT SUNSHINE
Case No. 2018/574
| AS (Anonymised) | Applicant |
| v | |
| RA (Anonymised) | Respondent |
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MAGISTRATE: | A.G. BURNS |
WHERE HELD: | SUNSHINE MAGISTRATES COURT |
DATE OF HEARING: | 19 FEBRUARY 2019 |
DATE OF DECISION: | 18 MARCH 2019 |
CASE MAY BE CITED AS: | AS v RA |
MEDIUM NEUTRAL CITATION: | [2019] VMC014 |
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CATCHWORDS – VOCAT Act - Delay s29 - Filing out of time - Standard of proof - Allegations of historical sex offences - Reform of sex offence law.
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APPEARANCES: | COUNSEL | SOLICITORS | |||
For the Applicant | Ms M. Ham | Counsel | |||
For the Respondent | Mr J. Marquis | Counsel | |||
JUDGMENT
This is an application for assistance under the Victims of Crime Assistance Act 1996 (‘the Act’). The applicant and the alleged offender are serving sworn members of Victoria Police. They worked together briefly in 1989 and coincidently work in the same department as each other now, having not worked together for many years in between.
Circumstances alleged
The Applicant alleges that in 1989 she worked as a probationary constable at the Essendon Police Station over a period of about 6 months. The alleged offender (‘AO”) was at that time also a constable of police at Essendon although it appears they had little interaction during their joint tenure there. The applicant alleges that in March of 1989, following a social function to mark her rotation away from Essendon to the Reservoir Police Station the first of two incidents, the subject of this application occurred. She alleges that after the function she invited a discreet cohort of close friends back at her home, an apartment in Kerferd Road Essendon for coffee. She asserts she did not invite the AO home. A short time after arriving home alone, the AO arrived, knocked on the door and was invited in. Her evidence is that she was surprised to see him there as he was not invited and had had next to no involvement with her during her time at Essendon. She asserts that on entering he turned and locked and latched the front door. She says no one else was home at the time. Her evidence was then, that whilst commencing to make coffee, she was grabbed by the shoulders by the AO and kissed forcefully. She quickly found herself with him in her bedroom and sexual intercourse took place. She asserts she was making herself clear that sex was not consented to. Her evidence is that she did not scream but was trying to push him off, was physically resisting and was telling him she did not want to have sex. During intercourse an invited guest came and knocked at the front door, calling out her name. She did not scream out to this friend and does not know why. The friend at the front door soon left. The sex ended soon afterwards and the AO left.[1] The incident was not reported then to police, either as a complaint of rape or via any discipline process at the time.
[1] Applicant Statement dated 31/12/2015, Paragraphs 12 – 15, Exhibit A in this case
The Applicant alleges that several times over the next 6 months she was telephoned by the AO whilst she was working at her new station, Reservoir. The AO had also moved onto a new and different workplace. The applicant asserts the AO asked to see her again on a number of occasions and despite, in her view that she made it plain, she did not want to see him, she ultimately agreed to meet him for a drink one evening. This was about 6 months after the first incident described above and the applicant suggests she agreed to meet again because she was hoping to receive an apology for the earlier incident, albeit neither had discussed it since. The AO collected her from her apartment and drove her to a venue close by for a drink. He drove an unmarked police car. This was said to be not unusual given he, by then, worked in a surveillance unit with 24/7 on-call availability.
Following a brief catch up, the Applicant asserts the AO drove her back. She was annoyed she did not get the apology she believed she deserved and in fact the events complained of from 6 months earlier were not discussed.
When back at the applicant’s home she assets the AO centrally locked the doors and jumped on top of her, kissing and indecently assaulting her. The Applicant asserts she managed to get out from underneath him, open the doors and leave. This second incident was not then complained of, nor reported to police and she had no further contact with the AO until many years later when they again worked together.[2]
[2] Applicant statement dated 31/12/2015, paragraph 18-20 – Exhibit A in this case
Report and investigation
Despite later telling several close friends and her partner of the alleged rape by a work colleague, it appears the applicant did not name the AO as the perpetrator. Her partner gave some evidence regarding this to the contrary but the applicant herself indicates she did not nominate the AO by name to her husband until 2013.[3] Little turns on this issue.
[3] Applicant statement dated 31/12/2015, paragraph 21 – Exhibit A in this case
The Applicant, when later a Senior Constable of Police, reported the matter to the Salus Taskforce in 2015 and made the statement which is Exhibit A in this case on 31/12/2015.
The AO, then a Senior Sergeant of Police working in a supervisory role over the Applicant, was interviewed and an investigation by the Salus taskforce commenced. The AO participated in an audio and video recorded interview on 10/2/2016.[4] That interview is transcribed over 66 pages and shows he answered 453 questions.
[4] Transcription of Record of interview with Accused 10/2/2016 – Respondent Exhibit 1 in this case.
The AO’s version from his 2016 record of interview is that sexual intercourse did in fact take place between he and the Applicant in March of 1989 at the applicant’s home following a work function. He denies raping or indecently assaulting the applicant and asserts that this was consensual sex. The AO asserts that the Applicant’s house mate, a female was home at the time that sexual intercourse took place and consistent with the applicant’s version confirms that a male knocked at the front door of the apartment during intercourse. The female house mate on the AO’s version, apparently called out and asked if the applicant wanted the door answered and when the Applicant declined that, the male soon left. After the sexual intercourse the AO asserts he left. He denies stridently the Applicant’s assertion that the sex was without consent.
10.The AO asserts that he contacted the Applicant again several times over the next 6 months and did in fact arrange to meet her again for a drink about 6 months after the earlier intercourse had taken place. He asserts the conversation was unremarkable. Their physical contact 6 months earlier was not raised by either party and discussion involved matters concerning the applicant’s running a marathon. The AO agrees he used an unmarked work vehicle for which he was on 24/7 availability. Following the catch up, the AO asserts he drove the applicant back to her home in time for her to commence a night shift. He asserts that on arrival, once parked he moved over onto the passenger side and engaged in mutually consensual kissing and touching. He again denies stridently the allegation that this activity was without the Applicant’s consent.
11.The AO asserts he did not see the Applicant socially again and had next to no contact with her over the next 20 years save for a training day here or there. In 2013 the AO was promoted to a supervisory position over the Applicant. He asserts he became aware of some tension between the Applicant and himself, but presumed she was embarrassed to some extent because they had been intimate years earlier and that he was now her boss.
12.The investigation of the Salus taskforce eventually concluded and Victoria Police, as overseen and advised by the Office of Public Prosecution declined to prosecute the AO, either for criminal or discipline charges. The Applicant was notified of this by letter from Victoria Police, Professional Standards Command dated 10 January 2017.[5]
[5] Letter under hand of Acting Assistant Commissioner Kent dated 10/1/2017 – Exhibit B in this case
13.The application to the Victims of Crime Assistance Tribunal (‘the Tribunal’) was filed 2018[6]
[6] VOCAT application 2018 574
Threshold Issue re S.29 of the Act
14.Given the application for assistance under the Act wasn’t filed until some 29 years after the alleged act of violence, a threshold issue needed to be determined. This was whether the application should be allowed to proceed despite the default prohibition on filing more than two years after the act of violence was alleged to have occurred, (the Applicant not being a child at the time of that alleged act).
15.The Tribunal was asked to consider this issue at the outset of the final hearing. An order was made on 19/2/2019 that the application could proceed albeit out of time. In coming to this view consideration was given to those factors set out in 29(3)(a) through (g) of the Act. In particular the Tribunal was satisfied that the matters set out in the Applicant’s statement[7] to the Salus Task Force satisfied those consideration in 29(3)(c) and (d) of the Act. The Tribunal was further satisfied that in accordance with section 29(3)(e) of the Act, that the delay in making the application, did not threaten its capacity to make a fair decision.
[7] Applicant statement dated 31/12/2015, paragraph5 to 9 & 16 – Exhibit A in this case
16.Those matters canvassed had to then be analysed through the prism that the Act is beneficial legislation.[8] Accordingly it attracts the principal that beneficial legislation is to be construed liberally.[9] In those circumstances and through that analysis, the order to allow the claim to proceed out of time was made and the matter proceeded on 19/2/2019.
[8] BFK v VOCAT [2017] VSC 736 at paragraph 23 per Macualay J
[9] IW v City of Perth (1997) 191 CLR 1 at 11 per Brennan CJ and McHugh J
Evidence before this tribunal
17.Applicant gave sworn evidence before this Tribunal. Her evidence adopted and expanded to some extent on the statement she had made[10] to the Salus Task Force. She was a compelling witness who didn’t resile in any way from her allegations during cross-examination by experienced counsel.
[10] Applicant Statement dated 31/12/2015, Exhibit A in this case
18.The AO was notified of this application by the Tribunal and appeared represented by counsel. The AO was not called to give sworn evidence but tendered and relied upon his record of interview made 10/2/2016.[11]
[11] Transcription of Record of interview with Accused 10/2/2016 – Respondent Exhibit 1 in this case.
19.Given there are some matters of a more sensitive nature that would be aired in a hearing with regard whether an injury occurred and the extent of such injury, counsel for the applicant sought that those matters be raised in the absence of the AO. Accordingly the Tribunal ruled that those matters would be ventilated in a second stage of the hearing of this case, provided the Tribunal was satisfied that the Applicant suffered acts of violence in March 1989 and later that year.
Standard of proof
20.The standard of proof to be employed in the determination of all facts to be decided by the Tribunal is on the balance of probabilities.[12] But that is not the end of the matter with regard to the level of satisfaction required for establishment of any fact in this jurisdiction. In law there are effectively only two standards of proof, beyond reasonable doubt used in criminal law for matters to be proved by the prosecution and the balance of probabilities used in all other matters. The High Court of Australia however has seen fit to expand on the level of satisfaction required in some cases where the standard of proof is on the balance of probabilities.
[12] Victims of Crime Assistance Act 1996, section 31
21.In Briginshaw v Briginshaw (1938) 60 CLR 336 at paragraphs 361 and 362, Dixon J said:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
22.Accordingly, the Tribunal must have regard to nature and consequences of the fact or facts if found proved. That is, the seriousness of the allegation and the gravity of the consequences flowing from a particular finding, bear upon the level of satisfaction required for proof.
23.To this end, for the applicant to be successful in this application the Tribunal must be comfortably satisfied that an act of violence[13] occurred to the Applicant in 1989 causing her injury. In the context of this case, the Tribunal then needs to be comfortably satisfied that the AO in March of 1989 committed a rape and (some 6 months later) an indecent assault against the applicant as those crimes were defined in 1989.
[13] Section 3(1) of the Victims of Crime Assistance (‘VOCA’) Act defines ‘Act of Violence’ to mean “a criminal act or a series of related criminal acts, whether committed by one or more persons that has occurred in Victoria and directly resulted in injury or death to one or more persons, irrespective of where the injury or death occurs.
24.That analysis requires an examination of the legislative landscape with regard to sex offences as it was in 1989 along with the any state of mind of the AO then required to be proved by the prosecution at that time.
Legislative regime in 1989
25.In 1989, the offences of rape and indecent assault were offences at common law and were so until 1991. The Crimes Act 1958 as it was reprinted with relevant amendments on 27 May 1987, included penalty provisions for those common law offences but did not statutorily define them specifically or refer to matters such as the accused state of mind, or concepts such as consent.
26.The Crimes Act 1958, with regard to sexual offences, had by 1989, been amended in 1980 to include the concept of sexual penetration being non-gender specific. In that amendment, physical acts which then fell within an inclusive definition of rape to include the introduction (to any extent) of the penis into the vagina, anus or mouth or a person or the introduction (to any extent) of an object (not being part of the body) into the vagina or mouth of a person[14]. By this amendment to the Crimes Act in 1980 the common law offence of rape was broadened from being a crime that could only be committed by a male against a female to an offences that could be committed by any person against another.
[14] Otherwise than as part of some generally accepted medical treatment.
27.As the legislation in 1989 did not deal with the concept of consent or the mental element of the accused in commission of the rape, these matters were left to the common law to fill in those gaps.
28.In this regard the decision of Victorian Court of Criminal Appeal in R v Saragozza [1984] VR 187 made rape allegations, where the accused claimed he acted with consent, often difficult to prove. In that case the Court held that on a charge of rape, the Crown must prove that the accused was aware the other person was not consenting or, realising that there might not be consent, went ahead regardless. On the question of whether any belief by the accused was required to be reasonable, the Court indicated a clear view:
This Court should now remove any doubts that may result from passing observations in its own earlier decisions by making it clear that Morgan’s Case is to be followed in Victoria. A mistaken belief in consent need not be reasonable: the reasonableness of the belief bears only on its existence.[15]
[15] [1984] VR 187 at 196
29.The Morgan’s Case[16] referred to in the paragraph above was an English decision of the House of Lords who ruled by a majority of three to two, that if a person accused of rape believed that the complainant was consenting, the accused was entitled to be acquitted of rape. It was of course for the Crown to prove that the accused did not have such belief (rather than for the accused to proof that he did). The accused’s belief in consent did not need to be based on reasonable grounds.
[16] [1976] AC 182
30.Within two years after Morgan’s Case, the UK Parliament enacted legislation to require that for an accused’s belief in consent in a rape case to be valid, it must be honest and reasonably held. This then incorporated an objective element into the assessment of the matter. As can be seen from Saragozza[17], in 1984 the position in Victoria was that such belief in consent by an accused in a rape case, remained wholly subjective to the point where it need not be reasonable and could legitimately operate as a defence even if mistaken.
[17] Ibid at 13
Law reform after 1989
31.The difficulties faced by the Crown in proving rape and allied offence cases, were the subject of much reform conversation in the late 1980’s and ultimately led to major legislative reform action in 1991. In this regard the Law Reform Commission of Victoria (‘LRC’) highlighted short comings in the legislation in its August 1986 Discussion paper.[18] Following on from this, the LRC published the Rape: Reform of law and Procedure report in 1991.[19] This report included a draft Crimes (Rape) Bill as an appendix. It proposed wholesale amendments to the Crimes Act 1958 that defined the elements of rape and indecent assault, defined consent and recommended jury directions with regard to consent.
[18] LRC of Victoria Discussion paper No.2 – Rape and Allied Offences, Substantive Aspects
[19] LRC of Victoria, Report No.43
32.Through the Crimes (Rape) Act 81/1991, the Crimes Act 1958 was amended in terms largely recommended by the LRC. Whilst some of the amendments were controversial at the time, the legislative landscape, at least for victims became fairer. This amending act changed sex offences law by inter alia abolishing the common law offence of rape[20] and giving greater protection to complainants in court proceedings. Indeed the law relating to sexual offending has been revolutionised since the common law offence of rape was abolished. Major amendments to the Crimes Act’s sexual offending provisions followed in 2006 and 2016 with minor amendments in other years also being not uncommon.
[20] In preference of the statutory offence of Rape found at section 38 of the then Crimes Act 1958.
33.So from 1991 onwards, the legal position with regard to the state of mind of an accused charged with rape, changed from one where, so long as he (or she[21]) had an honest belief in the victim’s consent, it did not mater if that belief was mistaken or otherwise unreasonable, to a position where such belief had to be reasonable in all the circumstances. Hence a transition evolved from a requirement for wholly subjective belief by an accused, to an objective belief as assessed by the jury.
[21] Following the 1980 amendments to the Crimes Act 1958 making sexual penetration non-gender specific.
Conclusion
34.So having regard to the foregoing matters, to find that the application is made out, the Tribunal must be satisfied that the Applicant is a primary victim[22] of an act of violence who was injured as a direct result of that act of violence in 1989. An ‘act of violence’[23] is a criminal act or series of related criminal acts. Whether an act is ‘criminal’ requires an assessment of the relevant criminal legislation, in this case the Crimes Act 1958 as it was amended in 1989.
[22] See section 7(1) VOCA act
[23] Ibid at 11
35.Applying that reasoning to this application, the tribunal must assess the recollections and conduct of the Applicant and the AO from 1989. Given the nature of the criminal legislative landscape at that time, it is possible for the applicant to believe she was raped (and later indecently assaulted) without any Tribunal being able to be satisfied on the balance of probabilities that the act of violence occurred. This Tribunal has no reason to suspect that the applicant does not believe any allegation she has made. At the same time, the AO has acted in a manner not inconsistent with innocence. He has co-operated with the Salus Task Force investigation, taken part in a lengthy record of interview and participated with representation in this hearing.
36.The allegations in this case are of a most serious kind. The consequences of a finding by the Tribunal that they are proven on the balance of probabilities would obviously involve personal and professional consequences for the AO of the most damaging kind. He remains a serving member of Victoria Police. As canvassed in paragraphs 18 to 22 above, applying the Briginshaw reasoning, the Tribunal would need a comfortable level of satisfaction before it could find the allegations, the substance of this application proven. In all the circumstances, particularly given the legislative landscape in 1989, the Tribunal is unable to find to the requisite standard, that the Applicant was in fact a victim of the alleged acts of violence in 1989.
37.Accordingly the application is dismissed.
38.With regard to the order made earlier and referred to in paragraph 19 above for a stage two of this hearing to determine whether an injury occurred and if so the level of such injury, that stage two hearing will now not proceed. None the less the interim awards made to the applicant for counselling remain available for use. Orders for costs and other disbursements in this case have already been made.
A.G. BURNS
Magistrate
Victims of Crime Assistance Tribunal sitting at the Sunshine Magistrates Court
18th of March 2019
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