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R v Abela

R v Abela

Case [2007] VSCA 22 28 February 2007

Prospects of rehabilitation

Manifest excessiveness

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 166 of 2005
	v
IVAN ABELA

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JUDGES:	NETTLE and NEAVE JJA and KING AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 November 2006
DATE OF JUDGMENT:	28 February 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 22

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CRIMINAL LAW – Rape – Conviction – Evidence – Propensity evidence – Whether just to admit evidence of prior sexual attack on complainant’s daughter – Complaint – Post-offence conversation – Whether capable of constituting evidence of complaint – Jury directions – Whether judge erred in inviting jury’s attention to stress to which complainant may have been subject in giving evidence – Crimes Act 1958, s 398A.

Criminal law – Rape – Sentencing – Concurrency – Totality – Prospects of rehabilitation – Manifest excessiveness – Appeal allowed – Appellant re-sentenced to five years and six months of which one year and three months to be served concurrently with prior sentence of three years , with a non-parole period in respect of all sentences remaining to be served of five years – Sentencing Act 1991, s 14(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O P Holdenson QC	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Victoria Legal Aid

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Neave JA and I agree with her Honour that the application for leave to appeal should be refused but that the application for leave to appeal against sentence should be allowed.

Appeal against conviction

So far as the appeal against conviction is concerned, it appears to me that the only question of substance is whether judge erred in admitting evidence that the applicant sexually attacked the complainant’s daughter on the evening before he was alleged to have raped the complainant.

Under s 398A of the Crimes Act 1958, propensity evidence that is relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence. As the authorities show, that means that such evidence will not ordinarily be regarded as admissible unless the evidence has strong and cogent probative force beyond proof of disposition.[1]
[1]R v Best [1998] 4 VR 603 at 611; R v Tektonopoulos [1999] 2 VR 412 at 416 [18]-[21]; R v Dupas (No 2) (2005) 12 VR 601 at 610 [22]-[26].

Plainly enough, the evidence of the applicant’s attack on the complainant’s daughter was relevant to the issues of whether the complainant consented to sexual intercourse and of whether the applicant was aware that the complainant was not consenting or might not be consenting to intercourse. Common sense dictates that a woman would be less likely to consent to sexual intercourse with a man if she knew that he had attacked her daughter the day before and equally that…

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 R v Abela

Details

AGLC: R v Abela [2007] VSCA 22
Case: [2007] VSCA 22
Decision Date: 28 February 2007

CaseChat Overview and Summary

In the case of R v Abela, the appellant was convicted of raping his daughter’s friend. The prosecution presented evidence of a prior sexual attack by the appellant on his own daughter. The appellant argued that the evidence was inadmissible because it was irrelevant and prejudicial. The court also had to consider whether a post-offence conversation between the appellant and his daughter could be considered a complaint and whether the trial judge erred in directing the jury to consider the stress the complainant may have experienced in giving evidence.

The legal issues in this case revolved around the admissibility of propensity evidence under the Crimes Act 1958, s 398A, and the definition of a complaint under the same Act. The court also needed to assess whether the trial judge's directions to the jury were appropriate, specifically regarding the stress the complainant experienced while testifying. The court needed to determine if the evidence of the prior sexual attack on the appellant’s daughter was relevant and whether it should have been admitted under the Act.

The court found that the evidence of the prior sexual attack was admissible as it was relevant to the appellant's propensity to commit such offences. The court also determined that the post-offence conversation could be considered a complaint. However, the court held that the trial judge erred in directing the jury to consider the stress the complainant experienced. Despite this error, the court concluded that it was unlikely to have affected the outcome of the trial. The court also found that the original sentence was manifestly excessive and re-sentenced the appellant to a total of five years and six months, with one year and three months to be served concurrently with a prior sentence.

The final orders of the court were that the appeal against conviction was dismissed, but the appeal against sentence was allowed. The appellant was re-sentenced to a total of five years and six months imprisonment, with a non-parole period of five years. The court held that the totality principle and the appellant’s prospects of rehabilitation warranted a reduced sentence.

Orders