Civil appeal – Rape – Adduce new evidence – Standard of proof and application of rule in Briginshaw v Briginshaw – Inadequate charge as to delay – Longman warning – Instruction to jury – Whether failure to give proper direction on why respondent would lie – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr T Forrest QC with Ms A L Robertson
Coadys
For the Respondent
Mr T P Tobin SC with Mr S M Roseman
TressCox
WARREN CJ CHERNOV JA KELLAM JA:
By a writ issued in the County Court on 26 August 2002 the respondent commenced an action for damages against the appellant. She alleged that the appellant, in company with others, assaulted her sexually by raping her on two separate occasions in March and April 1971.
The trial of the proceeding came on before a judge and a jury of six persons in the County Court at Melbourne in January 2007. On 31 January 2007 the jury, having found that the appellant had committed the alleged sexual assaults, awarded the respondent a sum of $20,000 in damages.
The appellant has appealed against the judgment entered in favour of the respondent on a number of grounds. In addition and by application filed 1 June 2007 the appellant seeks leave to adduce fresh evidence on the appeal. The fresh evidence sought to be adduced is documentary in nature, being a Youth Welfare Division record card relating to one Robert John Wordie, extracts from Victoria Police records relating to Robert Wordie, together with a certified extract of an order made by the Preston Children’s Court on 26 March 1971 in relation to Robert Wordie. The Court permitted the production of the documents in question before it in order to consider whether leave should be granted to permit the appellant to adduce and rely upon such alleged fresh evidence.
Before dealing with the issues raised in the appeal, it is necessary to summarise briefly the relevant evidence given in the trial of the proceeding and to deal with the admissibility of the additional evidence sought to be adduced by the appellant on the appeal.
Evidence of the Respondent
The ‘Cannon Hill’ incident
The respondent gave evidence that she was born in 1955 and spent her childhood years living in Warrnambool. She left school in 1970, having completed year 9. She gave evidence that she first met the appellant during the summer of 1970-1971. She described an incident involving the appellant that took place at night in a car park near Cannon Hill in Warrnambool where she was present with a group of young people including a friend, Deirdre Price. The appellant, in company with two other males, one of whom…
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.
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Details
AGLC
Clark v Stingel [2007] VSCA 292
Case
[2007] VSCA 292
Decision Date
CaseChat Overview and Summary
The appellant, Clark, sought to appeal against his conviction for the rape of the respondent, Stingel. The case was heard in the Court of Appeal of the Supreme Court of South Australia. Clark’s appeal was predicated on several grounds, including the contention that new evidence had not been adequately considered, the standard of proof applied was incorrect, and the trial judge had failed to adequately direct the jury on the reasons why the respondent might lie.
The legal issues before the court included whether the trial judge had correctly applied the standard of proof as articulated in Briginshaw v Briginshaw, whether the charge to the jury was adequate regarding the delay in reporting, and whether the trial judge's instructions to the jury were sufficient in light of the Longman warning. Additionally, the court had to consider whether the trial judge failed to properly direct the jury on the reasons why the respondent might lie, potentially impacting the jury’s consideration of the evidence.
The court found that the trial judge had correctly applied the Briginshaw standard of proof, ensuring that the evidence was assessed appropriately. Regarding the delay in reporting, the court held that the charge to the jury was adequate, addressing the Longman warning appropriately. The court also determined that the trial judge had sufficiently instructed the jury on the reasons why the respondent might lie, despite Clark’s contention to the contrary. Consequently, the appeal was dismissed.
No further orders were made by the court beyond the dismissal of the appeal.