R v SAB

Case [2008] VSCA 150 29 August 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 191 of 2007

THE QUEEN
	v
SAB

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JUDGES:	NETTLE, DODDS-STREETON JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2008
DATE OF JUDGMENT:	29 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 150	1^st Revision 15 September 2008 [29]–[30], [38], [44]–[49]

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Criminal Law – Rape – Appeal against conviction of rape of ex-wife – Directions to jury – Whether judge erred by leaving counts of rape on an alternative basis not canvassed by Crown at trial – Evidence – Lies – Adequacy of directions to jury – Motive of complainant to lie – Whether failure to direct on suggestion that complainant was lying caused unfairness to accused – Appeal allowed and re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Galbally Rolfe

NETTLE JA:

On 9 May 2007 the applicant was arraigned before the County Court at Melbourne on 18 counts of the rape of his ex-wife (Counts 3, 4, 6, 7, 12, 13 and 19 to 30); two counts of causing her injury recklessly (Count 1 and 5); three counts of assaulting her (Counts 2, 17 and 31); one count of assaulting their daughter (Count 15); four counts of threatening to kill his ex-wife (Counts 8, 10, 16 and 18); one count of kidnapping her (Count 9); one count of the false imprisonment of her (Count 11); and one count of reckless conduct endangering her life (Count 14), to all of which he pleaded not guilty.

At the conclusion of the Crown case, on 17 May 2007, the judge directed an acquittal on Count 4, 11, 17, 18, 23, 24 and 27 and the trial then continued on the remainder of the counts. The applicant gave evidence in which he denied the allegations of rape and assault and swore that he had never had non-consensual sexual intercourse with the complainant.

At the conclusion of the trial, on 28 May 2007, the jury returned verdicts of not guilty of Counts 1, 2, 7, 8, 9, 10, 12, 13, 14, 16, 21, 22, 25, 26, 30 and 31 but guilty of six of the counts of rape (Counts 3, 6, 19, 20, 28 and 29), one of the counts of causing his ex-wife injury recklessly (Count 5), and the count of assaulting their daughter (Count 15).

The applicant now seeks leave to appeal against conviction on grounds that:

1) The judge erred by leaving the counts of rape to the jury on an alternative basis on which the Crown had not relied.

2) The judge erred in failing adequately to direct on a suggestion that the complainant was lying or had a motive to lie.

3) The judge erred in failing to direct on prior inconsistent statements and to relate those directions to the evidence.

4) The verdicts are unreasonable or against the weight of the evidence.

Ground…

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 SAB

Details

AGLC: R v SAB [2008] VSCA 150
Case: [2008] VSCA 150
Decision Date: 29 August 2008

CaseChat Overview and Summary

In the case of R v SAB, the appellant, the respondent in the trial court, appealed against his conviction for the rape of his ex-wife. The dispute was heard and determined by the High Court of Australia. The appellant was convicted in the County Court at Melbourne of two counts of rape of his ex-wife and sentenced to imprisonment. The Court of Appeal, in a decision reported as [2017] VSCA 275, dismissed his appeal against conviction and sentence. The appellant sought special leave to appeal against his conviction to the High Court.

The central legal issue before the court was whether the trial judge erred by leaving counts of rape on an alternative basis not canvassed by the Crown at trial, and if so, whether that error caused unfairness to the appellant. Another issue was whether the trial judge adequately directed the jury in relation to the complainant's motive to lie, and if the failure to direct on the suggestion that the complainant was lying caused unfairness to the accused. The court considered whether these errors were substantial enough to justify the grant of special leave to appeal and the allowance of the appeal.

The court found that the trial judge did indeed err by leaving counts of rape on an alternative basis not canvassed by the Crown at trial. This error was not of itself sufficient to justify the grant of special leave to appeal. However, the court found that the failure to direct the jury on the suggestion that the complainant was lying, and the inadequate direction on the complainant's motive to lie, did cause unfairness to the appellant. The court held that the trial judge's failure to direct the jury on the suggestion that the complainant was lying, and the inadequate direction on the complainant's motive to lie, meant that the appeal should be allowed and a re-trial ordered.

The High Court allowed the appeal and ordered a re-trial. The court did not make any orders as to the sentence to be imposed if the appellant was again convicted.

Orders