C P v P M - [2009] VSC 232

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 5497 of 2008

CP	Appellant
v
PM	Respondent

---

JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2009
DATE OF JUDGMENT:	16 June 2009
CASE MAY BE CITED AS:	CP v PM
MEDIUM NEUTRAL CITATION:	[2009] VSC 232
JUDGMENT APPEALED FROM:	Children’s Court (McIndoe M, 3 March 2008)

---

APPEAL FROM CHILDREN’S COURT ON A QUESTION OF LAW – Rape – Mens rea – No error of law – Crimes Act 1958, s 38 – Children, Youth and Families Act 2005, s 427.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.G. Nash QC with Ms D.L. Mitchell	Ann Valos Criminal Law
For the Respondent	Ms S.M.K. Borg	Office of Public Prosecutions

HIS HONOUR:

Introduction

This is an appeal pursuant to s 427 of the Children, Youth and Families Act 2005 on a question of law, from a decision of the Children’s Court[1] constituted by McIndoe M. His Honour found the following charge proved against the appellant:

“The [appellant] at Werribee on 16 May 2007 did rape [SG, the complainant] by intentionally sexually penetrating her vagina with his penis without her consent while being aware that she was not consenting or might not be consenting.”

[1]Made on 3 March 2008

By his amended notice of appeal[2], the appellant relies upon three grounds of appeal as follows:
[2]Dated 10 June 2009.

“1.It was not open to the learned Magistrate, on the findings of fact displayed in his Honour’s reasons, to be satisfied beyond reasonable doubt that the appellant possessed the necessary mens rea for the offence of rape.
2.The learned Magistrate erred in law in applying an objective test for the purpose of determining whether the appellant was aware that the complainant might not have been consenting.
3.The learned Magistrate erred in concluding that proof of ‘circumstances by which [the appellant] must be taken to have been put on notice that [the complainant] might not have been consenting’ established beyond reasonable doubt that the appellant was aware that the complainant might not have been consenting.”

Originally, the appellant also appealed in relation to the disposition of the proceeding, making complaint about a failure by the magistrate “to impose a sentence available to him under s 360 of the Children, Youth and Families Act 2005.” However, this ground of appeal was abandoned at the commencement of the hearing.

For the reasons given below the appeal will be dismissed.

Background facts

The background facts of this matter are set out in the summary of the complainant’s evidence provided in paragraphs 9 to 12 of the affidavit in support of appeal sworn by Ms Mitchell on 11 April 2008. Paragraphs 9 to 12 provide:

“9.[SG] gave evidence that she met [CP] at a party. [SG] stayed at [CP’s] house on the night of the party. The two subsequently entered into a relationship. The relationship lasted about 2 months. During this period [SG] stayed at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading C P v P M

Details

AGLC: C P v P M [2009] VSC 232
Case: [2009] VSC 232
Decision Date: 16 June 2009

CaseChat Overview and Summary

In this case, C P appealed to the court against a decision made by the Children's Court concerning a charge of rape. The court was tasked with determining whether the trial judge had erred in his understanding of the necessary mens rea for the offence of rape under the Crimes Act 1958. The appeal hinged on the interpretation of statutory provisions and the application of legal principles concerning the mental state required for the offence.

The primary legal issue before the court was whether the trial judge had correctly understood the requirement of the mens rea for the offence of rape. Specifically, the court needed to consider whether the trial judge had correctly applied the definition of "intentionally" as outlined in section 38 of the Crimes Act 1958. This section stipulates that a person acts intentionally with respect to a result when their purpose is to cause that result. The court also needed to examine whether the trial judge had correctly interpreted the relevant sections of the Children, Youth and Families Act 2005 in the context of the case.

The court found no error in the trial judge's understanding and application of the law. The trial judge had correctly interpreted the mens rea requirement for the offence of rape and applied the statutory provisions as they were intended. The court held that the trial judge's findings were consistent with the legal principles governing the offence and that there was no basis for the appeal. Consequently, the court dismissed the appeal, affirming the original decision of the Children's Court.

Orders