Saab (a pseudonym) v The Queen

Case [2022] VSCA 116

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2021 0036
ABDUL SAAB (A PSEUDONYM)[1] Applicant
v
THE QUEEN Respondent

[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

---

JUDGES: MAXWELL P, KYROU and T FORREST JJA
WHERE HELD: Melbourne
DATE OF HEARING: 23 March 2022
DATE OF JUDGMENT: 23 June 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 116       First Revision: 24 June 2022
JUDGMENT APPEALED FROM: [2020] VCC 1468 (Judge Marich) (Sentence)

---

CRIMINAL LAW – Appeal – Conviction – Two charges of intentionally causing injury, two charges of false imprisonment, two charges of rape (charges 4, 6) constituted by lingual penetration of complainant’s vagina, one charge of rape (charge 5) constituted by penile penetration of complainant’s vagina, one charge of sexual assault – Ambiguity in complainant’s evidence regarding penetration by ‘tongue’ or ‘mouth’ – Whether complainant’s evidence sufficient to prove beyond reasonable doubt that applicant penetrated complainant’s vagina with his tongue – Appeal allowed in relation to charges 4 and 6.

CRIMINAL LAW – Appeal – Conviction – Charges of rape constituted by lingual penetration of complainant’s vagina – Whether Court can substitute conviction for rape constituted by penetration by applicant’s mouth, or for sexual assault, where applicant charged with rape constituted by penetration by his tongue – Kargar v The Queen [2018] VSCA 148, Mareangareu v The Queen (2019) 277 A Crim R 319 considered – Criminal Procedure Act 2009, ss 239, 277(1)(c).

CRIMINAL LAW – Appeal – Conviction – Temporal gap between charged conduct – In final address, prosecutor stated that applicant’s motive for committing later charged conduct could be inferred from earlier charged conduct – Whether prosecutor invited impermissible tendency reasoning – Whether prosecutor’s subsequent clarification and judge’s directions overcame risk of tendency reasoning.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 15 years, 6 months’ imprisonment with non-parole period of 11 years, 6 months – Applicant resentenced to total effective sentence of 12 years, 6 months’ imprisonment with non-parole period of 9 years, 3 months.

---

Counsel
Applicant: Ms G F Connelly
Respondent: Mr J C J McWilliams

Solicitors
Applicant: Valos Black & Associates
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

Summary

  1. I have had the advantage of reading in draft the reasons for judgment of Kyrou and T Forrest JJA. I agree with their Honours that proposed ground 3 should be rejected, for the reasons which they give.

  2. Grounds 1 and 2 concern the applicant’s convictions on two charges of rape. Each charge alleged that the applicant had penetrated the complainant with his tongue. Their Honours have concluded that her evidence in support of those charges was insufficient to prove penetration with the tongue.

  3. For the reasons which follow, I respectfully disagree. In my opinion, it was open to the jury acting reasonably to be satisfied that both acts of penetration by…

Continue reading Saab (a pseudonym) v The Queen

Sign in free to access the full text

Details
AGLC
Saab (a pseudonym) v The Queen [2022] VSCA 116
Case
[2022] VSCA 116
Decision Date

CaseChat Overview and Summary

Saab (a pseudonym) appealed against his conviction and sentence for multiple charges of sexual offences. The appeal was heard in the Court of Appeal, where the primary focus was on the adequacy of the sentence and the relevance of certain evidence presented during the trial. The applicant was found guilty of eight charges, including two counts of intentionally causing injury, two counts of false imprisonment, three counts of rape, and one count of sexual assault. The jury also found him guilty of a summary charge of threatening to distribute an intimate image.

The legal issues that the court had to address included whether the trial judge erred in not severing certain charges for trial and whether the sentence imposed was manifestly inadequate. Specifically, the court had to determine if the trial judge failed to adequately direct the jury on the appropriate use of other misconduct evidence and whether the sentence imposed was excessively lenient. The applicant argued that the judge should have separated the charges for trial to avoid the risk of the jury using impermissible propensity reasoning. Additionally, the applicant contended that the sentence was manifestly inadequate and should be increased.

The court considered the arguments and found that the trial judge had not erred in refusing to sever the charges for trial. The judge had correctly directed the jury on the appropriate use of other misconduct evidence, and there was no substantial risk of the jury using the evidence for any improper purpose. Regarding the sentence, the court found that while the sentence was on the higher end of the scale, it was not manifestly inadequate. However, the court decided that a reduction in the sentence was warranted, and thus resentenced the applicant to a total effective sentence of 12 years, 6 months’ imprisonment with a non-parole period of 9 years, 3 months.

The final orders of the court included the refusal of leave to appeal on the grounds related to the adequacy of the sentence and the direction given to the jury. The court also resentenced the applicant, reducing the total effective sentence and the non-parole period as specified.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 26 of the JDA defines ‘other misconduct evidence’ as including ‘tendency evidence’ within the meaning of the Evidence Act. Section 27(1) provides that defence counsel may request under s 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution. Section 27(2)(a) provides that, in giving such a direction, the judge must identify how the other misconduct evidence is relevant to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose. Section 29 of the JDA provides as follows:29Direction to avoid risk of improper use of other misconduct evidence(1)If other misconduct evidence (other than tendency evidence) is adduced, the prosecution or defence counsel may request under section 12 that the trial judge warn the jury not to use the evidence as tendency evidence.NoteSection 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.(2)Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as tendency evidence. On 11 March 2020, defence counsel made an application for charges 1 to 10 to be tried separately from charges 11 to 14. One of the bases for the application was that there was a significant risk that the jury would engage in impermissible propensity reasoning rather than considering the evidence in relation to the different incidents separately. Defence counsel submitted that the jury might reason that, ‘if [the applicant] has committed the offences [the subject of charges 1 to 10,] he will tend to be more likely to be the kind of person who would commit the offences [the subject of charges 11 to 14] … [a]nd vice versa’.[58][58]Transcript of Proceedings (11 March 2020) 23.18–23.24. The prosecutor stated that it was not his intention to rely upon tendency reasoning. He agreed with a statement by the judge that, if severance was not ordered, ‘there may be some limitation that [she] may need to impose at the conclusion of the trial in relation to the way in which [the prosecutor] can go to the jury as to how each set of evidence can be relied upon in relation to each successive set of evidence.’[59] The judge refused the application for separate trials. The complainant gave evidence that, after she left the applicant’s apartment on 24 July 2018, she let him know by telephone that she was going to stay with her brother. She stated that he responded ‘Okay. Well, that’s good. I’m — I’m happy that you got this, but I need my key.’[60] She said that he told her to return the key to the apartment within the hour, that he knew where her brother lived, and that, if she was not at his apartment within the hour, ‘expect anything’.[61] She said that she told him that she was scared to return because she did not want ‘what happened to [her] last time’ to happen again, but that he had promised that he was not going to touch her.[62][60]Transcript of Proceedings (17 March 2020) 228.23–228.24.[61]Transcript of Proceedings (17 March 2020) 228.29.[62]Transcript of Proceedings (17 March 2020) 230.8–230.23.

Decision

Reasons for decision

Her final answer puts the point beyond doubt. Asked whether any part of the applicant’s body went into her vagina, the complainant said, ‘Yes, his mouth. The tongue, whatever. His mouth.’ This answer – especially the words ‘The tongue, whatever’ – shows once again her reluctance to be explicit and her clear view that in this context the two words meant the same thing. Conclusion In her charge, the judge told the jury that there was ‘a live issue’ for their determination on charge 4, but the issue she identified was whether there had been penetration. Her Honour commented that the jury might think the complainant’s evidence as to penetration was ‘genuinely ambiguous’. Her Honour did not, however, suggest that any ambiguity had arisen through the complainant’s use of the words ‘mouth’ and tongue’. Subsequently, at the request of the prosecutor, her Honour gave this further direction in relation to charge 4: I have been reminded in relation to Charge 4 that – so this was the first act of alleged sexual penetration by introducing his tongue into her vagina on the indictment. And I reviewed the evidence and I will remind you of that evidence. ‘Did he touch your vagina with his tongue?’ ‘I’m not sure honestly. I don’t know. He went and put his mouth down there and he touched me with his mouth down there’, and at one point she said ‘mouth in there.’ That is Transcript 182. The jury’s attention was thus squarely drawn, though without elaboration, to the linguistic issue now under consideration. Having seen and heard the complainant give her evidence, the jury were satisfied beyond reasonable doubt that there had been penetration, and that on both occasions it was penetration by the applicant’s tongue. For the reasons I have given, that conclusion was reasonably open on the evidence. Leave to appeal on grounds 1 and 2 should therefore be refused. On 24 March 2020, a County Court jury found the applicant guilty of eight charges on Indictment J11961629.1 (‘trial indictment’). They were two charges of intentionally causing injury[3] (charges 1 and 11), two charges of false imprisonment[4] (charges 3 and 13), three charges of rape[5] (charges 4, 5 and 6) and one charge of sexual assault[6] (charge 14). He was also found guilty of one summary charge of threatening to distribute an intimate image.[7] The judge directed verdicts of not guilty in relation to four additional charges of rape (charges 7, 8, 9 and 10) because the complainant did not give any evidence in support of those charges. Charges 2 and 12 (recklessly causing injury) were alternatives to charges 1 and 11.[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.[4]Contrary to common law. The maximum penalty is 10 years’ imprisonment: Crimes Act, s 320.[5]Crimes Act, s 38. The maximum penalty is 25 years’ imprisonment.[6]Crimes Act, s 40. The maximum penalty is 10 years’ imprisonment.[7]Summary Offences Act 1966, s 41DB. The maximum penalty is 1 year’s imprisonment.

Ratio Decidendi

Legal Principle Established

The Crimes Act contains the following relevant provisions in relation to the offences of rape and sexual assault:35A Sexual penetration(1)A person (A) sexually penetrates another person (B) if—(a)A introduces (to any extent) a part of A’s body or an object into B’s vagina; or(b)A introduces (to any extent) a part of A’s body or an object into B’s anus; or(c)A introduces (to any extent) their penis into B’s mouth; or …35B Touching(1)Touching may be done—(a)with any part of the body; or(b)with anything else; or(c)through anything, including anything worn by the person doing the touching or by the person touched.(2)Touching may be sexual due to—(a)the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or(b)the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or(c)any other aspect of the touching, including the circumstances in which it is done.…35D Sexual activityAn activity may be sexual due to—(a)the area of the body that is involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or(b)the fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or(c)any other aspect of the activity, including the circumstances in which it is engaged in. ……38 Rape(1)A person (A) commits an offence if—(a)A intentionally sexually penetrates another person (B); and(b)B does not consent to the penetration; and(c)A does not reasonably believe that B consents to the penetration.…40 Sexual assault (1)A person (A) commits an offence if—(a)A intentionally touches another person (B); and(b)the touching is sexual; and(c)B does not consent to the touching; and(d)A does not reasonably believe that B consents to the touching. Section 277 of the CPA sets out the Court’s powers when it allows an appeal against conviction relevantly as follows:277 Orders etc. on successful appeal(1)If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (offence A) and must—(a)order a new trial of offence A; or(b)enter a judgment of acquittal of offence A; or(c)if—(i)the appellant could have been found guilty of some other offence (offence B) instead of offence A; and(ii)the court is satisfied that the jury or, in the case of a plea of guilty to offence A, the trial judge must have been satisfied of facts that prove the appellant was guilty of offence B—enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or(d)if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is not satisfied as required by paragraph (c)(ii), order a new trial for offence B; …