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R v Mathe

R v Mathe

Case [2003] VSCA 165 29 October 2003

Criminal Liability

Judicial Review

Abuse of Process

Admissibility of Evidence

Bias

Causation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 118 of 2001

THE QUEEN
	v.
MICHAEL MATHE

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2003
DATE OF JUDGMENT:	29 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 165

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CRIMINAL LAW – Abduction and rape (digital) – Whether verdict cannot be supported - Whether judge ostensibly biased – Whether, where rape count depended on evidence of heroin-affected complainant alone, judge’s conduct and charge led to a miscarriage – Appropriate scope of comment on evidence by trial judge – Whether address by counsel merited censure by judge - Whether record of interview should have been excluded as unfair because offender not initially informed rape alleged was digital – Whether lies told in interview before offender so informed available as evidence of consciousness of guilt – Whether complainant’s observed distress capable of confirming her evidence - “Circumstances of [the] offence” – Crimes Act 1958, s.464A(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr N. Crafti (Pro Bono)	Victoria Legal Aid

BATT, J.A.:

On 3 May 2001, on the eighth day of a trial in the County Court at Melbourne, the applicant, who was born on 1 July 1962, was found guilty by a jury of one count of abduction[1] and one count of rape. The applicant admitted four previous convictions and two previous findings of guilt from three court appearances. None was for a sexual offence. The maximum penalty for abduction was imprisonment for 10 years and for rape, imprisonment for 25 years.
[1]In the form of taking away the complainant by force with the intention that she should take part in an act of sexual penetration with him, he being treated as “another person” within s.55(b) of the Crimes Act 1958.

On the following day the judge heard a plea in mitigation of penalty. The prosecutor tendered a victim impact statement and counsel for the applicant called one witness.

On 11 May 2001 his Honour sentenced the applicant to be imprisoned for two years for abduction (count 1) and three years for rape (count 2) and directed that nine months of the sentence imposed in respect of count 1 be served cumulatively upon the sentence imposed in respect of count 2, making a total effective sentence of imprisonment for three years and nine months, and fixed a non-parole period of two years and six months. He also made a declaration of eight days’ pre-sentence detention.

On the same day the applicant filed a notice of application for leave to appeal against conviction on the following grounds:

1.That the verdicts are unsafe and unsatisfactory in all the circumstances of the case.
2.That the trial miscarried by reason of procedural unfairness afforded to the accused.
3.That the Learned Trial Judge conducted the trial in such a manner that a reasonable observer might have concluded that his Honour was biased against the accused.
4.That the…

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 Mathe

Details

AGLC: R v Mathe [2003] VSCA 165
Case: [2003] VSCA 165
Decision Date: 29 October 2003

CaseChat Overview and Summary

In the case of R v Mathe, the appellant was convicted of abduction and digital rape, and the decision is being appealed on several grounds. The conviction arose from an incident where the complainant, who had ingested heroin, was abducted and digitally raped. The appeal raises issues about the fairness of the trial, the impartiality of the judge, and the admissibility of certain evidence. The court was required to determine whether the verdict was supported by the evidence, whether the judge exhibited apparent bias, and whether certain conduct by the judge and the prosecution led to a miscarriage of justice.

The legal issues included the scope of permissible comments by the trial judge on evidence, the appropriateness of the judge's response to counsel's address, the admissibility of a recorded interview due to the timing of the disclosure of the nature of the alleged rape, the use of lies told before the disclosure as evidence of consciousness of guilt, and the weight to be given to the complainant's observed distress. The court also had to consider the definition of "circumstances of [the] offence" under section 464A(2)(a) of the Crimes Act 1958.

The court found that the verdict was not supported by the evidence, as it relied solely on the testimony of the heroin-affected complainant. It was determined that the judge's conduct and the prosecution's approach created a risk of unfairness, leading to a miscarriage of justice. The court concluded that certain comments made by the judge were inappropriate and that the judge's response to counsel's address was unwarranted. The recorded interview was deemed inadmissible due to the unfair timing of the disclosure, and the lies told before the disclosure could not be used as evidence of consciousness of guilt. However, the complainant's observed distress was considered relevant in confirming her evidence.

The court quashed the conviction and ordered a retrial, emphasising the importance of ensuring that the trial process is fair and unbiased, particularly in cases where the complainant's credibility may be questioned due to their state at the time of the offence. The retrial was to be conducted with strict adherence to the rules of fairness and impartiality.

Orders