DPP v Dowie [2009] VSCA 154

DPP v Dowie [2009] VSCA 154 - VSCA 2009 case summary — Zoe

[6]

[A]t approximately 11.30 p.m., the victim, a 21-year old female referred to as the victim, left her home in Elwood and began walking along Mitford Street, Elwood, towards the 7-Eleven store situated on the corner of Barkly and [Blessington] Streets, Elwood. On arrival approximately 10 minutes later she purchased a number of items including a block of chocolate, cigarettes tea bags and ice cream. The victim then began walking back home along Mitford Street. When she was about half-way home she heard a noise behind her and turned around. She was then confronted by the [respondent] who was armed with a knife. The [respondent] put his arm around the chest of the victim and using his right hand placed the knife to the throat of the victim. The [respondent] told her to shut up and not scream or he would kill her. The accused told her that the knife was against her jugular and he would 'slit her throat and run.' The victim was then frogmarched down Mitford Street right into Deakin street to the Botanical Gardens. The [respondent] was constantly telling the victim not to scream or he would slit her throat. Gives rise to Count 1, count of abduction.

He told her that he was going to have sex with her as many times as he wanted and that she was going to keep quiet. The [respondent] pushed the knife hard up against the victim's throat when he was threatening her. The victim described the knife as like a Stanley knife. The [respondent] forced the victim over the fence into the Botanical Gardens. At this time the victim dropped her bag of items that she had purchased from the 7-Eleven store. The [respondent] was still holding the knife against her as he walked her about 30 metres into the gardens. He selected a treed bushy area and then pushed the victim onto the ground and told her to get undressed whilst still pointing the knife at her. She was very scared and hesitated about undressing. The victim noticed the [respondent's] tone became rougher and he told her to hurry up as she was taking too long. The [respondent] got on top of the victim once she had taken off her clothes. He tried to force his tongue into her mouth whilst still holding the knife against her neck but she avoided him. He then forced her legs apart and began licking inside the complainant's vagina. Gives rise to Count 2, a count of rape. During this act the accused bit the inside lip of her vagina which caused her pain. He then inserted one of his fingers into her vagina. Gives rise to Count 3, a count of rape. And then put his penis inside her vagina, Count 4, count of rape. He did not wear a condom and ejaculated inside her vagina. They then put their clothes back on and the victim went to leave. For the first time she got a clear look at the face of the [respondent]. He then asked her whether she was getting a good description of him. The [respondent] still had the knife in his hand and stated that he wanted to talk to her. He told her that he wasn't a bad man. He said he had been out with people he didn't know and that somebody must have put something in his drink. She asked him if he had raped anyone before and he said that he hadn't.

She asked him why he carried a knife and he told her that he always carried one for self-defence. He told the victim that he felt rotten about what he had done to her, that he felt like shit and that he wanted to take her anger away. He asked her if she wished to go to the police station together. She said she didn't want to. The victim stated that she said that as she thought he was trying to trick her to see if she was going to tell anyone. The [respondent] was still holding the knife whilst they talked. She was crying throughout the incident and asked him to put the knife down. During this time he took out a cigarette and asked for her lighter. She told him that the lighter was in the shopping bag and that she had dropped it at the foot of the fence.

The victim stated that it was obvious to her that the [respondent] thought that she would try and get away if she went to collect the cigarette lighter. He then took her by the arm and led her to the fence where she dropped her bag. He dragged it under the fence. He was still holding the knife when he walked her back to where they had been sitting. He then lit a cigarette and put the knife down in his lap and raised his hands and said, 'See it's down.' He would then pick up the knife and put it back in his lap. This happened a few times before he threw the knife 4 or 5 feet away. She then got up to leave and he asked, 'What if I want sex again?' She said, 'No, can't you leave me alone? I've done everything you told me without screaming, please just let me go.' The [respondent] then pulled out another knife from his jacket, smaller than the other with a yellow handle and the blade on an angle like a Stanley knife. He pushed the blade up. She was standing and he was sitting on the ground. The victim then fled, jumped over the fence and caught a taxi nearby. She was driven to her home.[1]

[21]

You were born in Bulawayo, Zimbabwe. You lived there until the age of 28 when you left to live in the United Kingdom. Your mother died in June of this year aged 76. Your father died in November 1996 at the age of 78. Your father worked in the goldmines and eventually became a manager. Your parents separated when you were aged two or three. You have two elder siblings, a sister aged 43 and a brother aged 42. There are two other children, aged 52 and 50, but they lived with relatives during your upbringing.

Your mother, because of your father's behaviour, struggled financially. Your father inflicted a cruel lifestyle on your mother. You lived in a part of Bulawayo that was very much affected by Apartheid. You and your family were considered "coloured people", therefore not part of the white community nor part of the indigenous community. Consequently, your educational, and indeed social opportunities have been very limited. However, in saying that, it seems that you were a bright student. You completed Form 4 and did well at school.

After leaving school you found employment in a large department store and worked at an import/export business as a shipping clerk. You began travelling overseas and eventually set up your own import/export business. However, in 1996 there was a flood of import/export licences and your business fell away. You then formed a partnership with a friend and ran a Safari business. That business continued until 1998.

In 1998 you met an Australian woman. You went to the United Kingdom with her to do labouring work and you worked also in a hotel. In August 1999, you went back to Zimbabwe and introduced this woman to your family and then began living with her in Australia at Moe. Her parents appeared quite racist and there were stresses that developed in the relationship.

Initially you could not find employment because of the limitations on your Visa. In 2001 to 2004 you began working as a waiter and did bar work. You tried to make T-shirts, and began selling them from door to door in Chapel Street, however in 2005 you found employment in a very large department store where you remained until remanded in relation to the charge of rape.[9]

[42]

I was thrown over a high fence, had the point of a sharp knife rammed up against my throat, held down and raped. I was bruised, scratched and had to take medication (for HIV) which made me incredibly ill for a long time after the crime, I was vomiting for weeks, couldn't eat or even move with terrible headaches. I still suffer headaches and panic attacks where it is hard to breathe.

I was unable to work as a result of the crime for at least 6 months and then lost about 3 jobs as I cried so much. My parents & boyfriend's parents were forced to let me live with them and help me financially. I took more blood tests after about 6 months also. My parents had to pay for plane fares for me to go to N.Z. I rent and because security is such an issue end up paying more for extra security.

Straight after the crime I was depressed, lost. I couldn't eat or work. I cried all day and my parents paid for me to go back to N.Z. where I lost my boyfriend for some time as he didn't know what to do as I wouldn't let him touch me. The time it took me to rehabilitate from drugs was lengthened as I couldn't stand the nightmares and terror.

I found it difficult to handle any situation and being alone would send me into panic.

Walking down the street was and still is very difficult as I cannot walk past fences, hedges or anywhere somebody can conceal themselves. I still cannot participate in certain intimate acts and my partner has had to deal with trying to console me for all these years. There were whole years where I could not allow myself to be touched in any way, this resulted in more than one separation. I feel angry, scared and helpless every single day. I am now a mother and have been physically sick with fear that this could happen to my child who is not allowed to stay at friends houses, walk anywhere or be out of my sight for a moment.

My partner now works night shift and needs to get special permission to leave as any noise scares me so much he has to come home, resulting in less pay for him and an unreliable reputation at work.

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties