R W S v The Queen - [2012] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0058

R W S
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, HARPER JA and BEACH AJA
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	26 September 2012
DATE OF JUDGMENT:	26 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 249

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CRIMINAL LAW – Appeal – Conviction – Rape, indecent assault – Complainants intellectually disabled – Whether capable of free agreement to sexual acts – Whether jury directions adequate – Late abandonment of grounds of appeal – Application to add new ground – Leave refused – Complainants gave evidence in chief by audio-visual recording – Certain questions put by unauthorised person – Whether answers admissible – Whether unfair prejudice – Leave to appeal refused – Crimes Act 1958 (Vic) ss 36, 38, 39, Criminal Procedure Act 2009 (Vic) ss 367, 368, Evidence Act 2008 (Vic) ss 135, 137, 138.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis with Mr C T Carr	Camerons Lawyers
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
HARPER JA
BEACH AJA:

This is an application for leave to appeal against conviction on five counts of indecent assault and two counts of rape. For reasons which will follow, we would refuse leave to appeal.

The circumstances giving rise to the charges were as follows. Between January and October 2009 the applicant engaged in sexual acts with two women (to whom we will refer as ‘S’ and ‘T’ respectively). This took place at the applicant’s home.

Each of the complainants had a significant intellectual impairment. S, who was 33 at the time of these events, had a full scale IQ of 54. T, who was 36 at the time, had a full scale IQ of 64. Both were well below the cut-off point for intellectual disability which — according to the expert evidence at the trial — is an IQ of 70.

During the period of the offending, the complainants often attended the applicant’s house and assisted him and his then partner with odd jobs. On one occasion, the applicant asked S to lift up her top and expose her breasts. She did this and he then touched and sucked one of her breasts.

On another occasion, S attended the applicant’s home. The applicant’s partner was absent. The applicant took a shower and later joined S on his bed, where she lay naked. He then placed his penis in her mouth and in her vagina.

During October 2009, S and T attended the office area in the applicant’s house. The applicant asked T to lift her top. He then touched and sucked her breasts. He then instructed T to touch and rub his penis, which she did, and he then ejaculated. At some stage, the applicant took photographs of S’s breasts and vagina, and uploaded them onto his computer.

Apart from one count of rape (of which the applicant was acquitted), the defence admitted that the sexual activity…

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 W S v The Queen

Details

AGLC: R W S v The Queen [2012] VSCA 249
Case: [2012] VSCA 249
Decision Date: 26 September 2012

CaseChat Overview and Summary

In this case, the respondent, R W S, appealed against his conviction and sentence for the offences of rape and indecent assault against two intellectually disabled complainants. The appeal was heard by the Court of Appeal in Victoria, which included the Honourable Justices Kidd, Maxwell, and Weinberg. The respondent's primary contention was that the jury directions were inadequate, particularly regarding the complainants' capacity to freely consent to the sexual acts. Additionally, the respondent argued that the late abandonment of certain grounds of appeal and the attempt to introduce new grounds during the hearing should be considered, as well as the admissibility of certain audio-visual recorded evidence.

The court examined the adequacy of the jury directions concerning the complainants' capacity to freely consent to the sexual acts. It considered whether the jury was properly guided to understand the impact of the complainants' intellectual disabilities on their ability to give informed consent. The court also evaluated the late abandonment of certain grounds of appeal and the attempt to introduce new grounds, assessing whether this constituted an abuse of process. Furthermore, the court considered whether the answers provided by the complainants in the audio-visual recording were admissible, and if any prejudicial effect arose from certain questions being put by an unauthorised person.

The Court of Appeal held that the jury directions were adequate, as they properly addressed the complainants' capacity to give informed consent. The court also found that the late abandonment of certain grounds of appeal and the attempt to introduce new grounds did not constitute an abuse of process. Finally, the court ruled that the audio-visual recorded evidence was admissible, and any potential prejudicial effect was outweighed by the probative value of the evidence. Consequently, the Court of Appeal dismissed the appeal and affirmed the respondent's conviction and sentence.

Orders