Case Study

Our client came to Nelson Brown Legal after being originally tried in the County Court of Victoria on an indictment that charged him with rape by compelling sexual penetration, common assault and making a threat to kill. Whilst with another firm, he was found guilty by the jury of rape by compelling sexual penetration and one charge of common assault but acquitted of the other charges in the Country Court of Victoria.

Upon receiving his conviction and sentence, he engage Nelson Brown Legal as he wanted to challenge the order and sought leave to appeal his conviction and sentencing on the grounds that a substantial miscarriage of justice occurred – specifically in regard to a failure to provide a workable test for satisfaction of the element of causation.

We successfully argued that the trial judge failed to direct the jury before finding the element of causation prove. We submitted that it was vital for the trial judge’s directions to causation and consent be distinguished between penetration motivated in part or wholly by anger and wounded pride or on the other hand by fear, but the trial judge did not. As a result, the Appellate Judges Niall JA and Orr JA agreed with our arguments and stated that the failure of the judge to direct the jury properly on the element of causation in s 39(1) amounted to a substantial miscarriage of justice.

Our client successfully had their conviction set aside, the appeal was allowed, and a new trial was ordered. This was a great result for our client, considering the significance of the charges and the fact that our client had no previous criminal priors.

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