Women and Justice: Keywords

Domestic Case Law

Mwape v. The People Supreme Court of Zambia (2012)

Statutory rape or defilement

The appellant was charged with defilement contrary to Section 138 of the Penal Code, Chapter 87 of the Laws of Zambia (unlawful carnal knowledge of a girl under 16 years) and was sentenced to the minimum mandatory sentence of 15 years’ imprisonment. On behalf of the appellant, the appeal was filed on two grounds. On ground one, it was contended that the Court had erred in law by deciding not to conduct a voir dire and proceeding to receive the sworn evidence of a child. On ground two, it was contended the court below erred by finding corroboration and concluding the appellant was guiltywwww. Relative to the first grounds, the Court held that, while there had been no voir dire and while the Magistrate had failed to inquire as to whether the child understood the nature of the oath, this did not necessitate a re-trial, given that such orders are typically discretionary and this was not the only evidence tendered at trial. Relative to the second grounds, the Court observed that the question of identity was not in dispute and that there was substantial corroborative evidence that the crime had been committed. Accordingly, the Court concluded that the grounds lacked merit, as the Court was competent to convict the appellant even without the victim’s evidence. The Court further noted that the crime was compounded by the breach of trust that the appellant (who was the prosecutrix’s step-grandfather and exercising parental responsibility over her at the time) had committed against the victim and, therefore, set aside the 15-year minimum sentence in favor of a 20-year hard labour sentence. 

Jeffries v. R Supreme Court of New South Wales (Court of Criminal Appeal) (2008)

Domestic and intimate partner violence

The appellant in this case was convicted of multiple domestic violence offenses and sentenced to prison. The appellant sought an appeal on the basis that the judge in the lower court “erred in failing to consider special circumstances in relation to the question of accumulation” and also imposed a “manifestly excessive” sentence. In light of the seriousness of the appellant’s offenses, as well as his history of domestic violence against the victim in the case, the Court ordered the appeal dismissed. When dismissing the appeal, the Court noted the appellant’s “pessimistic . . . prospects of rehabilitation,” as well as general goals of deterrence and community safety.

Cruz v. Canada (Minister of Citizenship and Immigration) Immigration and Refugee Board (2012)

Domestic and intimate partner violence, Gender-based violence in general

This case concerns an application for review of a decision made by the Immigration and Refugee Board, which had determined a family applying for protection, a mother and two minor children, did not have a “well-founded fear of persecution” and were not persons in need of protection. The family expressed fear of domestic violence upon a return to Mexico. During appeal, the Federal Court held that the Immigration and Refugee Board was in error “when it determined that state protection was available to the minor Applicants in Mexico.” The Court noted that the children’s individual circumstances and fear were not properly assessed and ought to have been taken into consideration by the Board: specifically, “[t]he evidence adduced with respect to the situation of each individual child should have triggered separate analyses of risk.” Furthermore, the Court noted that the Board should have considered “the ability of the Mexican state to protect these children” as individuals. The application for review was allowed to proceed.

SZEGN v. Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Australia (2006)

Domestic and intimate partner violence, Gender-based violence in general

A citizen of Fiji sought an extension of time to appeal a decision by a Federal Court Magistrate who affirmed a decision by the Refugee Review Tribunal to deny a protection visa. She alleged that she had a well-founded fear of persecution if returned to Fiji as a person who had been subjected to domestic violence by her former husband and as a member of the social group of “women at risk in Fiji.” The Tribunal found that while women had historically been at risk in Fiji, recent police forms and judgments suggested that she no longer had a reasonable fear of persecution. On appeal, she alleged that the Tribunal failed to provide her with a copy of certain country information as required by Australian law. The court found that the Tribunal was prepared to accept that the applicant was a member of a protected social group but did not accept that there was a lack of state protection. The court further found that the Tribunal adequately laid out the bases for its decision and that it did not rely on the material not provided to the applicant.