This is a case study on an appeal against conviction for incest charges (the crime of having sexual intercourse with a person whom the accused knows is a child, lineal descendant or stepchild).
What is alleged to have occurred?
The alleged crime involved two separate occasions on which our client entered the complainant’s bedroom and forced themselves onto her and had intercourse. The incident allegedly happened in 2005 when, at the time, our client was 36 or 37 years of age and the complainant was aged between 13 and 14 years old.
What happened at the County Court trial?
The matter proceeded as a jury trial in the County Court of Victoria in 2022, where our client was found guilty of both charges by a jury. In early 2023, our client was sentenced to a total effective sentence of 8 years and 6 months’ imprisonment, with a non-parole period of 5 years.
During the trial, the complainant’s mother gave evidence of an occasion when the complainant had a “meltdown” and yelled and screamed at her mother, alleging that our client had “raped” her. The complainant also gave similar evidence but said that she did not remember much about it other than what her mother had told her later. This “meltdown” happened over a year after the alleged offending.
In the closing address, the prosecutor invited the jury to use this evidence of the complainant’s distress during her meltdown as evidence supporting her account of the alleged offending, stating “that distress is something that is entirely consistent with her complaint”. In the charge to the jury, the trial judge further referred to the prosecutor’s invitation, and stated that as an example where the jury were being invited to draw an inference to act upon indirect evidence.
What happened at the Court of Appeal
Shortly after, our client sought leave to appeal against their conviction. This application was dealt with at the Court of Appeal where written case was filed and considered by the court.
The appeal was eventually allowed on the ground that the trial miscarried, because the jury was invited to make evidence of the complainant’s distress and the directions given in relation to that.
The Court of Appeal determined that the use of evidence of distress was problematic.
The law requires that there must exist a rational causal link between the complainant’s distress and the underlying offending. This requires the trial judge to do more than just explain the argument put by the prosecutor or a general warning. It requires the trial judge to direct the jury specifically in that they need to be satisfied that there is a rational causal link, and to warn the jury that distress evidence generally carries little weight.
The Court of Appeal concluded that “the failure to give these directions has occasioned a substantial miscarriage of justice” and that a retrial must be ordered.
What was the result?
Our client’s appeal was successful. The appeal against conviction for incest was allowed and our client will run a new trial at the County Court of Victoria next year.
DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 06/12/2024
