A university college would have needed to "diminish" a rape victim's autonomy in order to comply with a duty it was found to have owed her, its barrister has told an appeal court.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
John XXIII College, a residence on the Australian National University campus, was last year found to have breached its duty of care to a former student before and after she was raped in 2015.
Following a lengthy civil trial in the ACT Supreme Court, Justice Michael Elkaim found the woman had been sexually assaulted by a fellow student in a Civic alleyway during a "pub golf" hazing ritual.
This event involved student leaders taping bottles of alcohol to the hands of participants, who would have to drink a certain amount to make "par".
Justice Elkaim found the college had failed in its duty of care to the victim by "sending unruly students out into the night" with the unsanctioned event in progress, knowing they were likely to get more drunk and that there were vulnerable young women among them.
He said participants in the "widespread" event had been ordered off the college's premises after throwing up in bins and sinks, leaving the college smelling of alcohol and vomit.
They ultimately made their way into the city and continued drinking at venues including Mooseheads, beside which the rape occurred.
The rape victim was so drunk by the time she was assaulted that she later had no memory of it, Justice Elkaim found, only learning about it roughly 10 days after the fact when a friend of hers heard the perpetrator joking about it.
The judge also determined that the college had mishandled the woman's subsequent complaint in a further breach of its duty of care to her.
MORE COURT AND CRIME NEWS:
He awarded the rape victim more than $420,000 in damages, but placed a stay on the payment of all but $20,000 pending the outcome of an appeal brought by the college.
That challenge began in the ACT Court of Appeal on Monday, when the college's barrister, Michael Windsor SC, indicated there were a large number of grounds.
Parts of Mr Windsor's submissions focused on the willingness of the woman in question to take part in the "pub golf" event in both 2015 and the previous year.
He disputed Justice Elkaim's finding that the woman was already intoxicated by the time she left the college to head to Civic on the relevant night, and argued students had only been told to leave the residential wings rather than the college premises as a whole.
Mr Windsor added that it had not been in his client's power to stop the woman going into the city to drink.
He said she was 20 at the time in question, and "not a school student".
"Someone in that position - that is; free, independent, adult - is someone whose freedom or autonomy is not to be diminished," he told the Court of Appeal.
Mr Windsor argued it would be "too severe" and at odds with legal principles to have expected the college to stop the woman leaving its premises to get drunk when she was still capable of "acting as an autonomous individual".
Starting her submissions on Monday afternoon, the rape victim's barrister, Fiona McLeod SC, told the court there was "broad context" for relevant findings made by Justice Elkaim.
Two days have been allocated for the appeal, which is taking place before Chief Justice Helen Murrell, Justice Chrissa Loukas-Karlsson and Acting Justice Verity McWilliam.
It is set to resume on Friday.
Our journalists work hard to provide local, up-to-date news to the community. This is how you can continue to access our trusted content:
- Bookmark canberratimes.com.au
- Download our app
- Make sure you are signed up for our breaking and regular headlines newsletters
- Follow us on Twitter
- Follow us on Instagram