R v SAB

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.