R v Aston-Brien

[2000] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v Aston-Brien [2000] QCA 211

PARTIES:

R
v
ASTON-BRIEN, Stephen John
(appellant)

FILE NO/S:

CA No 439 of 1999
DC No 177 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction and sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

2 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2000

JUDGES:

Davies JA, Mackenzie and Douglas JJ
Judgment of the Court

ORDER:

Appeal against conviction allowed and new trial ordered

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – COMPLAINTS – GENERALLY – appeal against conviction and sentence on charge of rape – complainant at time of offence was recovering from injuries suffered as a result of a motor vehicle accident – complainant was a user of amphetamines – after the incident the complainant was given drugs by appellant – the following day the complainant told the appellant's girlfriend of the incident – approximately six months later a further complaint was made which led to the arrest of the appellant – where first complaint was not treated as recent for the purposes of the trial – where trial judge did not give directions as to the permissible use of initial complaint – whether a direction should have been given to warn the jury that evidence of prior complaint was not evidence of facts in issue

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT – GENERALLY – whether there should have been a direction as to evidence tending to show the appellant was of bad character – where it is an impermissible conclusion that appellant's involvement with drugs constitutes guilt of rape – whether lack of direction vitiated the trial

Jones v The Queen (1997) 71 ALJR 538, applied
Robinson (1998) 102 A Crim R 89, considered
Robinson v The Queen (1999) 73 ALJR 1314, considered
Suresh v The Queen (1998) 153 ALR 145, applied

COUNSEL:

J M McLennan for appellant
A J Rafter for respondent

SOLICITORS:

Legal Aid Queensland for appellant
Director of Public Prosecutions (Queensland) for respondent

1. THE COURT:  The appellant was convicted of rape and sentenced to six years imprisonment.  He appeals against his conviction and seeks leave to appeal against sentence.

1. The complainant was a 20 year old woman who from time to time lived with the appellant and his girlfriend.  The complainant was a user of amphetamines at the time of the offence.  On the day of the offence she was recovering from injuries suffered two days before when she got out of a moving vehicle as a result of an argument with the driver.  She was self-medicating herself with Serapax and codeine phosphate for the two days while she was convalescing.

1. Her evidence was that she was asleep in the bed normally shared by the appellant and his girlfriend.  She had gone to bed wearing only boxer shorts and a T-shirt.  She was awakened to find the appellant on top…